R. v. Tzaferis, 2013 ONCJ 636

COURT FILE No.: Northumberland County 12-0350 DATE: 2013·11·20 Citation: R. v. Tzaferis, 2013 ONCJ 636 ONTARIO COURT OF JUSTICE BETWEEN: Her Majesty the Queen — AND — Marcus Tzaferis Before Justice of the Peace R.J. Le Blanc Heard on September 24, 2013 Written reasons for Judgment released on November 20, 2013 Andrew Fordham ....................................................................................................... for the Crown Calvin Barry ................................................................................ for the defendant Marcus Tzaferis Regulations and case law considered Subsection 172(1) of the HTA Subsection 172(20)

Section 3 of O. Reg. 455/07, as amended, R. v. Raham, 2010 ONCA 206 R. v. Pires [2009] O.J. No. 5080 (Ont. C.J.) R. v. Arnold [2011] P.E.I.J. No. 25 (C.A.) R. v. Schell, [2009] O.J. No. 4668 (Ont. S.C.) R. v. Fontaine, [2004] 1.S.C.R. 702 U.S.A. v. Shepherd, [1977] 2. S.C.R. 1067. R. v. Mezzo, (SCC), [1986] 1 S.C.R. 802 (S.C.C.) R. v. Norat [2009] ONCJ 106 R. v. Whyte, (SCC), [1988] 2 S.C.R. 3 R. v. Schwartz, (SCC), [1988] 2 S.C.R. 443 R. v. Ariganello, 2013 ONCJ 13 R. v. W. (D.) 1991 93 (SCC), (SCC), [1997] S.C.R. 742, 63 C.C.C. (3d) 397 R. v. Defaria 2008 ONCJ 687 , [2008] O.J. No. 5427 R. v. Sirianni, 2010 ONCJ 725 R. v. Clothier, 2011 ONCA 27 (Ont. C.A.) R. v. Summerfield, 2012 ONCJ 183

R. v. Sault Ste. Marie, (SCC), [1978] 2 S.C.R. 1299 R. v. Williams 2008 1504 (Ont. C.J.) JUSTICE OF THE PEACE R.J. LE BLANC: 1. Marcus Tzaferis stands charged with the offence of stunt racing contrary to s. 172(1) of the Highway Traffic Act.2. Subsection 172(1) of the HTA reads: Racing, stunts, etc., prohibited – No person shall drive a motor vehicle on a highway on arace or contest, while performing a stunt or on a bet or wager. 3. Subsection 172(20) states: Regulations – The Lieutenant Governor in Council may make regulations, (

c) defining the terms “race”,“contest” and “stunt” for the purposes of this section.

Section 3 of O. Reg. 455/07, as amended, made under the Highway Traffic Act, provides the

definitions for eight drivingbehaviours constituting a “stunt.” 5. The definition of “stunt” in R. v. Tzaferis comes by way of the seventh of those eight driving behaviours: “Driving a motor vehicleat a rate of speed that is 50 kilometres per hour or more over the speed limit.” 6. The Court acknowledges at the outset that as per paragraph 38 of R. v. Raham, 2010 ONCA 206 that stunt driving is a strictliability offence to which the defence of due diligence becomes available to a defendant once the Crown proves its case beyond areasonable doubt. The Crown’s evidence 7. Northumberland OPP Const.

Jeff Tamlin testified he was on duty August 4, 2012 conducting speed enforcement on Highway 401.8. Const. Tamlin said he tested the Laser Atlanta Lidar unit to manufacturer’s specifications at the Brighton OPP detachment –having conducted several testing procedures – prior to beginning his on-road shift, and found it to be in proper working order.9. The officer, under cross-examination, discussed in detail the tests carried out according to manufacturer’s specifications.

Lidar, itwas explained to the Court, is technology that can accurately measure the speed of a moving motor vehicle by sending out a laserbeam and analyzing the reflected light.10. The officer’s Lidar unit would be testified again after the traffic stop to manufacturer’s specifications and was again found to be inproper working order. The officer’s evidence is that he is a trained and qualified Lidar operator.11. At about 8:45 p.m. on August 4, 2012 the officer was parked on a gravel turn on Highway 401 at mile marker 514, just east ofBrighton in Northumberland County, where he was conducting speed enforcement.12.

Const. Tamlin testified he observed a black eastbound Lexus in lane one, travelling at a high rate of speed, passing a red HondaCivic which appeared to be travelling at, or slightly faster, than the posted speed limit of 100 km/h.13. Const. Tamlin said he placed the cross-hairs of the Lidar on the front licence plate area of the Lexus, depressed the trigger button –sending out a beam of light which returns a speed measurement on contact. He said he received a reading from the Lexus on theLidar unit’s heads-up display of 161 km/h at a distance of 614.67 metres, thus confirming his visual observation.14.

There were no error messages and the unit emitted a tone confirming the validity of the reading. Had there been a malfunction theLidar’s display would have returned an ‘error’ message rather than a speed, Const. Tamlin said. Such was not the case.15. There were no other vehicles in the immediate vicinity of the Lexus and Honda, and there were no obstructions in the Lidar beam,he said.16. Under cross-examination the officer reaffirmed that he was parked (stationary) at the time the Lidar was activated. Const.

Tamlinsaid the width of the laser beam at 614.67 m. would be 1.8 metres, and the lane the Lexus was travelling in was about 3.5 m. wide.17. Const. Tamlin dismissed the possibility the equipment was receiving a reading from a nearby vehicle, rather than the Lexus he wastargeting in the laser’s crosshairs.18. Under cross-examination he said the unit retrieves a reading within milliseconds of depressing the trigger, which would not havean effect on the accuracy of the speed retrieved. As a result he said he was “100 per cent sure” of the speed of the Lexus.19.

The officer conducted a traffic stop without losing sight of the suspect vehicle.20. He received a valid Ontario photo Class G driver’s licence in the name of Marcus Tzaferis, date of birth of 1979/09/08, 3 LinsteadCourt, Etobicoke Ontario.21. Const. Tamlin said he compared the photo to the driver and was satisfied with the identity of the accused. There was a femaleoccupant in the vehicle.22. Const. Tamlin agreed under cross-examination that he did not show the defendant the laser reading, noting there is no requirementfor him to do so.23. Const. Tamlin said he issued a

Part III summons following his investigation to bring the defendant to court on a charge of stuntracing pursuant to s. 172 of the Highway Traffic Act.24. This was the Crown’s evidence. Motion for directed verdict dismissed

25. Defence counsel suggested the officer’s failure to point to the accused in court amounted to failure to failure to prove identity.26. R. v. Pires, [2009] O.J. No. 5080 (Ont. C.J.) states atrial justice is required to rule on a defendant’s motion for non-suit at the closeof the prosecution’s case.27. R. v. Arnold, [2011] P.E.I.J. No. 25 (C.A.) is compelling in that it suggests the court, on a motion for a directed verdict or non-suit,should ask the questions, “Could a trier of fact properly convict?’ and more importantly, “is there some evidence on each andevery element of the offence?”28.

The test for non-suit is not whether there is evidence beyond a reasonable doubt, but only that there is some evidence on each ofthe essential elements of the offence as per R. v. Schell, [2009] O.J. No. 4668 (Ont. S.C.)29. For a prima facie case there must be some evidence upon which a properly instructed jury could rationally conclude that anaccused is guilty beyond a reasonable doubt as per R. v. Fontaine, [2004] 1.S.C.R. 702 which is a refinement of the classic test asper U.S.A. v. Shepherd, [1977] 2. S.C.R. 1067.30.

In determining whether a prima facie case has been made out, the justice assumes the witness is truthful and also accurate and doesnot decide whether a witness is to be believed as per R. v. Mezzo, (SCC), [1986] 1 S.C.R. 802 (S.C.C.)31. R. v. Norat, [2009] ONCJ 106 citing Justice Sue Mclean at paragraph 33 says: “In this case the appellant produced a driver’slicence with a photograph that satisfied the officer he was dealing with the named person….

These acts amounted to (rebuttable)admissions by the appellant of the contents of the driver’s licence. … It was reasonable to draw the inference from these provenfacts. … The appellant would have the opportunity at trial to challenge this inference either through cross-examination of theofficer or by calling evidence.”32. Defence counsel Mr. Barry cited R. v. Whyte, (SCC), [1988] 2 S.C.R. 3 which is referred to in R. v. Schwartz, (SCC), [1988] 2 S.C.R. 443 in paragraph 39, which says, “It is important not to identify the evidential burdensolely with the accused.

The Crown has the evidential burden of leading evidence which, if believed, would prove each element ofthe offence charged. If the Crown does not even meet this evidential requirement, the case never goes to the trier of fact; theaccused has a right to a directed verdict of acquittal.33. The Court dismissed a defence counsel motion for a directed verdict, citing R. v. Whyte (supra) and R. v. Norat (supra), given it hadat least some evidence from Const. Tamlin as to Mr. Tzaferis’ identity by way of a comparison of a photo in a valid Ontariodriver’s licence to the accused behind the wheel of the motor vehicle.

Expert evidence 34. The Court accepted an agreed statement of fact from defence Lidar expert John McNall that a black motor vehicle is a hardercolour for the unit to acquire as opposed to a red motor vehicle.35. Mr. McNall’s evidence is that despite this, the difference in reflection times is a matter of milliseconds which does not affect theaccuracy of the Lidar reading. Defence evidence 36. Mr. Tzaferis’ testimony does not dispute the date, time, place or his identification. His evidence is that he and his wife weretravelling from St. Anne’s Spa to a dinner engagement in Prince Edward County.

He could not recall what time he left the spa, orthe name or location of the restaurant. He could not recall how many cars were on the road at the time of the offence but doesrecall the red Honda, and that there may have been a couple of vehicles “ahead of us,” by a distance of possibly 75 metres ; “I wantto say a green Intrepid.”37. Mr. Tzaferis testified the OPP cruiser was moving when he first saw it from a distance of 500-600 metres.38. Under cross-examination he said he wasn’t sure what time he left the spa, nor could he say with any certainty what time they wereto arrive at the restaurant.

He couldn’t recall whether the OPP cruiser had roof lights or antennae. He said he thought it may havebeen raining lightly but wasn’t sure.39. The defendant’s spouse, Cordelia Silva, was a passenger in the vehicle at the time. The couple had left Grafton on their way toWellington for a 9:30 p.m. dinner engagement. They’d left the spa at Grafton about 15 minutes prior to the traffic stop.40. She said her attention was drawn to the OPP cruiser as it slowed and pulled into a gravel lane for emergency vehicles thatconnected the eastbound and westbound lanes of Hwy. 401.41. Ms.

Silva said she couldn’t recall the cruiser having roof lights, and she couldn’t recall the weather at the time of the traffic stopthough it had been raining “on and off.” She recalled a red car passing the Lexus, adding it was her belief her husband wastravelling at a speed consistent with the flow of traffic, “maybe 20 km/hr. over the speed limit.”42. Ms. Silva denied a Crown contention that she has spoken with her husband about the matter prior to attending Court. Submissions 43. In submissions Mr. Barry said both defence witnesses were truthful which raises reasonable doubt as per R. v.

W. (D.) 1991 93(SCC), (SCC), [1997] S.C.R. 742, 63 C.C.C. (3d) 397. He suggested the defence evidence is that the officer wasnot stationary when the laser readings were taken, and he further suggested the laser unit Const. Tamlin was operating mistakenlytracked the red Honda rather that the defendant’s black Lexus.44. Assistant Crown Mr. Fordham submits Const. Tamlin’s evidence is reliable and that there was nothing provided by way ofdefence evidence to cast doubt on the validity of the laser reading. He said Const.

Tamlin testified he was 100 per cent certain thelaser reading returned was from the black Lexus he was concentrating on rather than the red Honda which appeared to betravelling at the posted speed limit.45. He said the defendant and his spouse seemed uncertain in their testimony about a number of items.46. “It’s not simply a question of whether they appeared credible but is it plausible?” he said. For example, “it’s just not plausible” forthe officer to be aiming crosshairs at an oncoming motor vehicle while his vehicle was moving, Mr.

Fordham said. “There isnothing in the defence evidence that is credible and reliable.” Case law on the strict liability offences and the need for an R. v. W. (D.) analysis 47. As referred to earlier, the Ontario Court of Appeal in R. v. Raham (supra) paragraph 38 determines the offence of stunt racing to bea strict liability offence, to which the defence of due diligence is available.

48. Paragraph 38 reads, “In this case, the presumption in favour of a constitutional

interpretation means that if the offence chargedagainst the respondent can be reasonably interpreted as a strict liability offence, it must be so interpreted even if it could alsoreasonably be interpreted as an absolute liability offence.”49. Neither Crown nor Defence counsel spoke to the offence of stunt racing being a strict liability offence, nor did Mr. Barry profferthe defence of due diligence in his submissions.50. Paragraph 48 of R. v.

Raham (supra) reads, “The due diligence defence relates to the doing of the prohibited act with which thedefendant is charged and not to the defendant’s conduct in a larger sense. The defendant must show he took reasonable steps toavoid committing the offence charged, not that he or she was acting lawfully in a broader sense. … The due diligence defencemust relate to commission of the prohibited act, not some broader notion of acting reasonably.

Just as a due diligence defence isnot made out by acting generally in a reasonable way, it is not necessarily lost by virtue of actions surrounding the prohibited act,legal or illegal, unless those actions establish that the defendant, in committing the prohibited act, failed to take all reasonable care.51. Both defence counsel and Crown have invited the Court to conduct an R. v. W. (D.) analysis with regard to credibility of theirwitnesses. There is case law that says such an analysis would be inappropriate in a strict liability offence to which a due diligencedefence is available.52. R. v.

Ariganello, 2013 ONCJ 13 says that an analysis as per R. v. W. (D.) 1991 93 (SCC), (SCC), [1997] S.C.R.742, 63 C.C.C. (3d) 397 does not apply to regulatory offences where the defence of due diligence is to be assessed by a trial Court.The party with the onus of proof on a balance of probabilities has the obligation to prove that the existence or non-existence of afact of issue is more likely than not.53. R. v. Defaria 2008 ONCJ 687 , [2008] O.J.

No. 5427 (paragraph 16), says, “The direction in W.D. speaks to the properassessment of a defendant’s evidence in the context of a criminal case where the Crown bears the burden of proof beyond areasonable doubt. As mentioned, in this case, the matter in issue was due diligence, a point on which the appellant carried theburden on the balance of probabilities. In my view, it would be illogical and inappropriate to give the defendant the benefit ofreasonable doubt on credibility when he bears the burden of proof on a balance of probabilities.

I am firmly of the view that W.D.has no application to regulatory offences where the defence of due diligence is to be assessed by the trial Court.” Steps to be considered on a strict liability offence 54. There is ample case law that sets out the steps for the Court to consider in a strict liability offence.55. R. v.

Sirianni, 2010 ONCJ 725 states that the Court must first determine whether the Crown has proven the essential elements ofthe offence to the test of “beyond a reasonable doubt.” If so, then the Court must then consider whether the defendant has proven a‘due diligence’ defence on a balance of probabilities.56. R. v. Clothier, 2011 ONCA 27 (Ont. C.A.) notes the objective of regulatory legislation is to protect the public or broad segments ofthe public (e.g. motorists) from potentially adverse effects of otherwise lawful activity.

Regulatory legislation involves a shift ofemphasis from the protection of individual interests and the deterrence and punishment of acts involving moral fault to theprotection of the public and social interest. Regulatory measures are generally directed to the prevention of future harm through theenforcement of minimum standards of conduct and care.57. R. v.

Clothier (supra) notes the fault element of negligence is automatically imported into the offence - that once the Crown hasmet its burden of proof on a strict liability offence -- and the defendant will be convicted unless he is able to establish, on a balanceof probabilities, that he or she “took all reasonable care” to avoid the prohibited action.58. R. v.

Summerfield, 2012 ONCJ 183 states defendant’s evidence does not necessarily discharge his burden on a balance ofprobabilities unless he also establishes he did not otherwise know of legislation pertaining to motor vehicles, and, that his lack ofknowledge was not due to his negligence. There is no evidence before the Court in R. v. Tzaferis to suggest the defendant was notaware of the law pertaining to stunt racing, or that any lack of such knowledge was not attributable to his negligence.59. R. v. Sault Ste.

Marie, (SCC), [1978] 2 S.C.R.1299 states a defendant must provide evidence that he took allreasonable steps in the circumstances, or was operating under a reasonable mistake of fact, which if true, would render the actlawful. Has the Crown proven its case beyond a reasonable doubt? 60. Can the Court find the Crown has proven its case beyond a reasonable doubt?61. It is open to the Court to find Const. Tamlin’s evidence to be straightforward, credible and reliable.

Defence counsel asked Const.Tamlin a number of questions about the testing of the Lidar unit and the officer provided answers that lead the court to be believethe appropriate tests were carried out to manufacturer’s specifications – both before and after the traffic stop -- and that it wasworking properly.62. Const. Tamlin also testified he is a trained and qualified Lidar operator.63. Applying the first test in a strict liability offence to which the defence of due diligence is available as per R. v. Raham (supra); hasthe Crown met the burden of proof beyond a reasonable doubt?64.

The Court looks to case law to make this determination and turns its mind to the alleged offence of travelling at a rate of speed of50 km/h or more over the posted speed limit.65. R. v. Raham (supra) paragraph 52, says, “In

summary, I would interpret the offence of stunt driving by speeding as defined in s.3(7) of the Regulation as creating a strict liability offence. It is true that the prohibited conduct is identical to the conductprohibited by the offence of speeding created by s. 128. I see nothing illogical in treating one as a strict liability offence and theother as an absolute liability offence. The stunt driving provision provides for the potential of incarceration, the speeding provisiondoes not. This distinction is constitutionally significant.”66.

So the Court, putting aside for the moment the potential for incarceration which makes stunt racing a strict liability offence, turnsto case law on speeding to determine whether the Crown has proven the essential elements of the offence.67. The essential elements of ‘speeding’ as per R. v. Williams, 2008 1504 (Ont. C.J.) are the date, time, place, identity of the driver,posted speed limit, and the speed of a motor vehicle. Only the last point is in contention in R. v. Tzaferis.68. It is open to the Crown according to R. v. Williams (supra) to establish a rate of speed.

Evidence must meet the test ofdemonstrating a circumstantial guarantee of trustworthiness and accuracy, without weight to the contrary. The burden of proof isalways on the Crown to the standard of ‘beyond a reasonable doubt.’69. It is open to the Court to find the Crown has established a prima facie case, which is to say the Crown has produced at least someevidence on each of the elements of the offence.

70 . It is open to the Court to find the Crown-deduced evidence establishes circumstantial guarantee of trustworthiness and accuracy of the speed of the defendant’s motor vehicle given a properly trained and qualified operator used Lidar, tested to manufacturer’s specifications before and after the traffic stop, which was found to be in proper working order. 71 . There is ample case law to support that a properly working laser unit operated by a trained and qualified technician produces extremely accurate evidence of the speed of a moving motor vehicle.

Laser, under those circumstances, is much like a breathalyser in that it does one thing and one thing only and does it accurately. 72 . In this case Const. Tamlin, using the Lidar ‘scope’, aimed a laser beam, placing it on the licence plate portion of the front bumper of a speeding black Lexus. The beam at a distance of 614.67 metres, has a ‘spread’ of 1.8 metres. The lane the Lexus was travelling in is approximately 3.5 metres. The beam therefore could not travel outside the Lexus’ lane. 73 . Const.

Tamlin said he was 100 per cent sure the Lidar reading came from the speeding black Lexus, and not from any other vehicle. This was not disputed by the defence Lidar expert. 74 . It is open to the defendant -- without reversing the onus on the Crown to prove guilt beyond a reasonable doubt -- to cast doubt on the Crown’s evidence or to provide evidence to the contrary. 75 . Mr. Tzaferis and Ms. Silva attempted both to cast doubt on the Crown’s evidence, and to provide evidence to the contrary. 76 . With regard to casting doubt on Const. Tamlin’s evidence, the court dismisses Mr. Tzaferis’ and Ms.

Silva’s testimony that the officer’s vehicle was moving at the time the laser reading was taken. 77 . Const. Tamlin testified he was stationary at the time the laser reading was taken. 78 . The Court notes Mr. Tzaferis’ observation of the moving police vehicle– made while he was driving and supposedly alive to traffic conditions at the time – comes at a distance of about 600 metres (nearly 2000 feet). 79 . The Court takes judicial notice that the sun rises in the east, and sets in the west, and that by mid-August 8:45 p.m. would be considered twilight at best, if not dusk. 80 .

It is open to the Court find that whatever light there was left at 8:45 p.m. on the night in question, it would be coming from over Mr. Tzaferis’ shoulder as he headed eastbound. There was no evidence before the Court of any artificial lighting in the area. 81 . Given those factors it is open to the Court to find it difficult at best to find Mr. Tzaferis’ and Ms. Silva’s observation of a moving police vehicle to be considered accurate, even on the lesser test of on a balance of probabilities. 82 .

It is open to the Court to find the defence supposition -- which the officer’s vehicle was moving while he depressed the Lidar trigger while aiming the device at a moving motor vehicle -- is simply not plausible given the officer’s description of the steps that must be taken in order to successfully obtain a laser reading. 83 . It is beyond the Court’s ability to conclude realistically that Const. Tamlin was able to drive and aim the laser and depress the trigger simultaneously to receive an accurate reading. The Court finds that the defence evidence in this regard is self-serving at best, and scripted.

Assessing evidence to the contrary 84 . The Court finds that Mr. Tzaferis failed to provide any evidence as to his speed that evening at the time and place in question. It is open to the Court to find nothing to substantiate Ms. Silva’s unsubstantiated belief – even on the lesser test of “on a balance of probabilities -- which her husband was “maybe” travelling at a speed of about 120 km/h. 85 . It appears at first blush that this speed Ms. Silva “believes’ her spouse was travelling at was picked out of thin air during examination-in-chief. At no point did she say she’d seen the speedometer in the vehicle.

There was no further questioning as to how she knew her “belief” to be accurate. 86 . It is open to the Court to find her evidence does not prove, even on the lower test of a ‘balance of probabilities’ that the Lexus she was travelling in was travelling at 120 km/h. 87 . As to the remainder of Mr. Tzaferis’ testimony it appeared he knew little about where he came from, where he was going, whether it was raining or what time the dinner reservation was for, and yet was able to answer questions that support his defence unreservedly. 88 . There was nothing in Mr. Tzaferis’ or Ms.

Silva’s evidence to suggest exactly where the red Honda Civic was in relation to his vehicle at approximately the time the laser reading was taken, or what the red Honda Civic’s speed was at the time Const. Tamlin depressed the Lidar button. 89 . The Court having considered all of the evidence with regard to the red Honda Civic finds it to have been travelling at or near the posted speed limit of 100 km/h. As such it is not believable that it passed the Tzaferis vehicle. 90 . Ms.

Silva’s evidence was more forthright as to where the couple had been that day, what time they left Grafton, where they were going, and what time they were to arrive at. 91 . Beyond that however it is open to the Court to find Ms. Silva’s evidence falls short of proof on a balance of probabilities – given the onus is reversed in a due diligence defence as per R. v. Raham (supra)– that her spouse was driving at a speed or 120 km/h to keep up with the flow of traffic. Evidence the Court accepts 92 .

It is open to the Court to find given the evidence it does accept as being credible and reliable that the laser operated by Const. Tamlin accurately targeted the black Lexus Mr. Tzaferis was driving, having passed a red Honda Civic which was travelling at or about the posted speed limit. 93 . It is open to the Court to find Mr. Barry’s assertion in submissions-- that the Lidar reading of a high rate of speed must have come from red Honda Civic rather than the defendant’s vehicle -- lacks any basis in reality. 94 .

There isn’t any evidence before the Court, even from the defendant’s expert witness to support such a supposition. Const. Tamlin’s evidence that he is 100 per cent certain the Lidar reading returned from Mr. Tzaferis’ Lexus. 95 . Once the Crown has proven the actus reus on a strict liability offence beyond a reasonable doubt the accused is presumed to have been negligent in committing the prohibited action of travelling at a rate of speed of more than 50 km/h over the posted speed limit. 96 .

The burden of proof shifts to the defendant on a balance of probabilities to show he exercised reasonable care, or did, according to existing case law, what a reasonable motorist would do. 97 . If Mr. Tzaferis had been able to do so his presumed negligence is rebutted and the Court must acquit. 98 . The Court, having applied case law on the defence of due diligence, finds Mr. Tzaferis has not proven on a balance of probabilities to show he exercised reasonable care, and therefore his presumed negligence has not been rebutted.

99 . It is open to the Court, having considered the evidence, submissions and case law, to find Mr. Tzaferis guilty of the offence of stunt racing by travelling at a rate of speed that exceeds the posted speed limit by 50 km/h or more. Released: Wednesday November 20, 2013 “Justice of the Peace R. J. Le Blanc”