Docket: CACR2295 Peter V. Abrametz Appellant - v. -, 2014 SKCA 84

THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2014 SKCA 84 Date: 2014-08-14 Between: Docket: CACR2295 Peter V. Abrametz Appellant - and - Her Majesty the Queen Respondent Coram: Richards C.J.S., Klebuc and Ottenbreit JJ.A. Counsel: Mitchell James Holash , Q.C. for the appellant Anthony B. Gerein for the respondent Appeal: From: Provincial Court: Duck Lake and 2013 SKQB 105 Heard: November 19, 2013 Disposition: Leave to appeal; Appeal granted Written Reasons: August 14, 2014 By: The Honourable Mr. Justice Klebuc In Concurrence: The Honourable Chief Justice Richards

The Honourable Mr. Justice Ottenbreit Klebuc J.A. I. Introduction [ 1 ] A Provincial Court judge found the appellant guilty of driving a motor vehicle on a public highway at a speed of 135 km/h contrary to s. 199(1) (

b) of The Traffic Safety Act , S.S. 2004, c. T-18.1 ( The Act ). The appellant unsuccessfully appealed the conviction to the

Summary Conviction Appeal Court and now seeks leave to appeal from the decision of the

Summary Conviction Appeal Court. [ 2 ] For the reasons hereinafter set forth, I would grant the appellant leave to appeal, and would allow the appeal and set aside the conviction. II. Background [ 3 ] On September 17, 2007, Constable Wolfenden of the Royal Canadian Mounted Police (the officer) was patrolling on Louis Riel Trail Saskatchewan Provincial Highway 11 (Highway 11). At a point on the highway between the town of Duck Lake and the town of Rosthern he observed a motor vehicle traveling in the opposite direction.

Based on his experience and training, he visually assessed the oncoming vehicle was traveling at a speed greater than 100 km/h but was unable to gauge whether it was traveling substantially faster than the posted speed limit of 100 km/h. To determine the oncoming vehicle’s speed, he engaged the radar speed detection device (radar unit) installed in his police cruiser. It reported that the vehicle was traveling at 135 km/h. The officer then stopped the vehicle and issued the appellant, being the driver thereof, a ticket for driving a vehicle on a public highway at a speed exceeding 100 km/h contrary to s. 199(1)(

b) of The Act. [ 4 ] The appellant contested the speeding ticket on the grounds that the alleged speed of his vehicle was not proven beyond a reasonable doubt. III. Judicial History A. Provincial Court of Saskatchewan Dated January 7, 2009 [ 5 ] The speeding charge was tried before a Provincial Court judge on January 7, 2009. No evidence was presented during the trial confirming the presence of posted maximum speed limit signs for the subject portion of Highway 11 .

Nor did the Crown file a certificate pursuant to s. 258(2) of The Act confirming the tuning forks the officer used to determine the accuracy of the radar unit had been tested for accuracy. [ 6 ] Section 258(2) of The Act is reproduced below: 258(2) In a prosecution for a contravention of this Act, the regulations or a bylaw of a municipality, the following certificates are admissible in evidence as proof, in the absence of evidence to the contrary, of the facts stated in the certificate and of the authority of the person who issued and signed the certificate, without proof of his or her appointment or signature: (

a) a certificate: (

i) stating the result of a test of: … (

B) a tuning fork identified in the certificate and used for determining the accuracy of a radar set; … (

E) any other device identified in the certificate and used for or in connection with establishing the speed of vehicles; (ii) bearing a date: (

A) in the case of a tuning fork, not more than one year before or after the date of the offence charged; … (iii) purporting to be signed by a prescribed tester to test devices of the type stated to have been tested; … [ 7 ] The officer testified that while he had no direct knowledge of the tuning forks having been tested he believed the radar unit accurately identified the speed of the appellant’s vehicle. He further noted that he had used the radar unit many times.

However during the cross-examination of him by the appellant, the officer materially limited the nature of his statement regarding the accuracy of the radar unit on the day in question. He agreed the validity of his testimony regarding the accuracy of the radar unit was contingent on knowing whether the tuning forks he used were vibrating at the prescribed frequency and he did not know whether they were. The

following questions and answers from pp. 25–27 of the transcript are significant: Q Well, okay, I’m not sure that you heard the question right or maybe I didn’t hear the answer. We’re going to try this one more time. You’re a qualified operator? A Yes. Q In terms of being a qualified operator -- A Yes. Q -- was part of your training the fact that it’s important that the tuning forks have a tuning fork certificate? A Yes, sir. Q And the reason it was important was to ensure that the external test would actually be properly done? A Yes.

Q And the external test would actually properly show the machine was working properly? A Yes. Q And that the testing equipment was actually properly calibrated to do these tests? A Yes. Q Okay. And the reason the external calibration is an essential part of the testing is because the frequency reported by the tuning forks shows that the machine is working properly? A Yes. Q Okay.

And I gather, sir, you will agree with me that it’s essential to the validity of your evidence in Court here today with respect to the radar machine that we know whether or not the tuning fork was vibrating at the frequency it was supposed to be vibrating? A Yes. [ 8 ] The following questions and answers from pp. 23–25 of the transcript, comprising the cross examination of the officer, confirmed he was not trained to test the frequency of tuning forks and that he was aware of the significance of accurate tuning forks: Q Oh, okay. All right.

And -- and actually there’s two kinds of tests with the radar device, there’s the external test, which is the tuning fork and the internal test; is that not correct? A Mmhmm, Q Okay. And the external test then is the tuning forks and that’s to -- to have an independent verification that the -- the electronics are actually working properly; is that -- A (No audible answer) Q Okay. And so would you agree with me, sir, is that the tuning forks is an important and integral test to ensure that the radar unit is working properly? A Yes. Q Okay. And -- and let’s talk a little bit now about the certificates.

You don’t have tuning fork certificates; is that right? A No. Q And again, I wonder if you’d share with the Court, what is a tuning fork certificate? A It’s to show that they were sent to wherever they are sent, that the fork is not compromised and is functioning properly. Q Okay. And why is the tuning fork sent out to be tested to be sure that they’re not compromised and that they’re working properly? Why is this? A To ensure that they are functioning properly. Q Ah, okay. All right.

And I gather that -- that when these are sent away that the certificate -- or that the turning forks come back with a certificate certifying that they’re working properly? A Yes.

Q Okay. And I gather, sir, that without a certificate you can’t actually say today that those tuning forks were certified as beingworking properly? A Without a certificate, but with my virtue of training experience with it they did not tell me -- there was nothing to suggest theywere not. Q But you have no training with it, this is a testing device. What are you -- are you saying that you’re a tuning fork tester? A No, I am not. Q Okay. Well, what kind of training have you got with the tuning fork? A To use the tuning fork, sir. Q Yeah, and your training consists of taking it and hitting it on a steering wheel?

A Yes. Q That’s your test, that’s your training? A Yes, sir. [9] Upon the Crown closing its case, the appellant moved for an order dismissing the charge against him on several grounds.First, an essential element of the offence had not been proven by virtue of there being no evidence of posted speed limit signs onHighway 11 stating the maximum permitted speed was 100 km/h, as required by The Act.

Second, the accuracy of the radar unit was indoubt: that is, the Crown failed to establish beyond a reasonable doubt that the appellant’s vehicle was travelling 135 km/h when targetedby the officer. [10] The trial judge dealt with the posted speed limit requirement by taking judicial notice of the fact that the posted speed limit forHighway 11 was 100 km/h. In his oral judgment he outlined the basis for his conclusion: In this particular case we do have circumstantial evidence as to the speed limit being 100 kilometres per hour based on the oraltestimony of the officer ….

The question is then, can the court take judicial notice of the fact that speed limit is posted? And I’ve concluded that the courtcan. It is such a notorious fact that the posted speed limit on that highway at that location is 100 kilometres per hour …. I say that for acouple of reasons. Number one, it is a very, very, very busy highway and just about everyone in Saskatchewan has travelled it andeveryone knows the posted speed limit is 100 kilometres per hour. That is a notorious fact. Secondly, everyone in Saskatchewan knows that on a highway like this one, the posted speed limit is either 100 or 110.

It’s only110 if it’s a four-lane rather than a two-lane highway. Thirdly, the court cannot ignore the fact that this judge travels that highwaycontinuously through the year and not to acknowledge that that is the posted speed limit, I think, would in this day and age be a bitnonsensical. (6 May 2009 Transcript at pp. 51–52) [11] The trial judge then turned to the accuracy of the radar unit. In doing so, he ignored the officer’s testimony that knowingwhether the tuning forks he used generated the correct frequency was essential to the validity of his evidence that the appellant’s vehiclewas travelling at 135 km/h.

The trial judge also gave no weight to the officer’s admission that he was not qualified to opine on whetherthe tuning forks were accurate. Instead, the trial judge concluded the lack of a certificate for the tuning forks, or the officer not beingable to say that the subject tuning forks were accurate, was not fatal by virtue of R. v. Gibson (1998), (SK KB), 171Sask. R. 290.

He summarized the ratio in Gibson in these terms: However, my reading of the appeal decisions from the Court of Queen’s Bench suggest to me that the correct statement of law is asfollows: That the use of tuning forks is only one factor among three factors that must be considered by the court in determining whetheror not the Crown has proven beyond a reasonable doubt that the instrument was functioning properly on the date in question.

The other two factors are the internal check by the machine having regard to the fact that the tuning forks are an external check; theinternal check through the machine itself is an internal check, is a second factor.

The third factor is that the court is entitled and musttake into consideration the observation of the police officer and his experience with regard to whether or not the vehicle was exceedingthe posted speed limit at the time. (6 May 2009 Transcript at pp. 53–54) [12] The trial judge then found that the officer was able to establish the accuracy of the radar unit without knowing whether thetuning forks he used to test the unit were accurate, and therefore, the speed reading of 135 km/h reported by the radar unit was accurate.Relying on this misinterpretation of the officer’s evidence, the trial judge found the appellant guilty of violating s. 199(1)(

b) of The Acton the basis that he had been travelling at 135 km/h. B. Queen’s Bench Court Decision 2013 SKQB 105 [13] The appellant appealed the trial court decision to the

Summary Conviction Appeal Court on the following grounds: (1) the trialjudge erred in taking judicial notice that official 100 km/h speed limit signs were posted along the relevant portion of Highway 11; (2)the trial judge misinterpreted the evidence of the officer and misapplied Gibson, supra; and (3) the conviction was unreasonable becausehe had been found guilty notwithstanding the officer’s admission that the absence of a tuning fork certificate affected the validity of hisevidence about the reliability of the radar unit.

[ 14 ] With regard to the first ground, the learned appeal judge held the trial judge was entitled to take judicial notice of the posted speed limit for the material portion of Highway 11 being 100 km/h. [ 15 ] Regarding the second and third ground advanced by the appellant, the appeal judge endorsed the trial judge’s

interpretation of the evidence and his

interpretation of R. v. Gibson . At paras. 19 and 20 of his judgment he stated the following: [19] … Whether the certificate was in the officer’s pocket or whether the officer was unable to locate the certificate at the detachment does not affect the validity of the officer’s evidence that he had used this radar detector between 300 and 400 times without problem, that he had checked the radar detector with the internal check and the tuning forks both at the start of his shift and at the end of his shift and found it working properly.

The evidence before the court as presented by a qualified radar detector technician is that it was working properly. [20] Although the court found that the judge could not apply his personal experience and therefore the original judgment contained an error in law under s. 686(1) (a)(ii) of the Criminal Code , R.S.C. 1985, c. C-46, the appeal is dismissed under s. 686(1) (b)(iii) as there was no substantial wrong or miscarriage of justice. [ 16 ] Based on his conclusions, the appeal judge dismissed the appellant’s appeal. The appellant then launched the within appeal. IV. Jurisdiction and Standard of Review [ 17 ]

Section 4 of The

Summary Offences Procedure Act, 1990 , S.S. 1990-91, c. S-63.1 provides for proceedings to enforce provisions, inter alia , of The Act , which may be brought summarily under the

summary conviction provisions of the Criminal Code , R.S.C. 1985, c. C-46 . Section 839(1) of the Criminal Code provides that an appeal from the

Summary Conviction Appeal Court may, with leave, be brought before this Court on a question of law. An error in the assessment of whether a conviction is unreasonable is a question of law. See R. v. Biniaris , 2000 SCC 15 , [2000] 1 S.C.R. 381 at para. 23 ; R. v. R.P., 2012 SCC 22 , [2012] 1 S.C.R. 746 at para.10; and R. v. Rhynes , 2004 PESCAD 15 at para. 28 , 239 Nfld. & P.E.I.R. 89 (PEI SC Appeal Div.) . The applicable standard of review is one of correctness. V. Analysis [ 18 ] The following issues arise out of the evidence and the submissions by counsel: A.

Did the appeal judge err in law by holding that the trial judge was entitled to take judicial notice of the “official posted speed limit” for the subject portion of Highway 11? B. Having regard to the officer having testified that knowing whether the tuning forks were generating the prescribed frequency was essential to the validity of his evidence, did the appeal judge err in failing to find the appellant’s conviction was unreasonable? [ 19 ] That said, I turn to the first issue: A.

Did the appeal judge err in holding that the trial judge was entitled to take judicial notice of the “official posted speed limit” for the subject portion of Highway 11? [ 20 ] Of particular relevance to this issue are ss. 199(1)(b), 201(1) and 2(1)(

u) of The Act . They provide the following: Speeding prohibited 199(1) S ubject to the other provisions of this Act, no person shall drive a vehicle on a highway: … (

b) at a speed greater than the maximum speed indicated by any signs that are erected on the highway in accordance with

section 200 or 201 ... … Speeding in speed zone prohibited 201(1) If pursuant to The Highways and Transportation Act, 1997 or any former Highways and Transportation Act , a speed zone is established by the erection of an official sign, no person shall drive a vehicle on the portion of the highway within the speed zone at a speed greater than indicated. … 2(l)(u) “official sign” means a sign, pavement marking, barricade or object that is authorized by the minister responsible for the administration of The Highways and Transportation Act, 1997 pursuant to another Act or by that minister or any other person pursuant to this 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. [ 21 ] The law pertaining to the principle of “judicial notice” is canvassed in Sopinka, Lederman and Bryant, The Law of Evidence in Canada, 3rd ed. (Markham, Ontario: LexisNexis Canada, 2009) at ss. 19.13–19.17 inclusive.

At s. 19.13 the learned authors state: Facts which are (

a) so notorious as not to be the subject of dispute among reasonable persons; or (

b) capable of immediate and accurate demonstration by resorting to readily accessible sources of indisputable accuracy, may be noticed by the court without of proof of them by any party. (p. 1268)

[22] When considering whether a fact is suitable for judicial notice, a judge is not to take his or her personal knowledge intoaccount, or profess to know of the fact, or take steps to acquire knowledge of the fact: see R. v. Bland (1974), (ON CA),20 C.C.C. (2d) 332 (Ont. C.A.) and R. v. Potts (1982), (ON CA), 134 D.L.R. (3d) 227 (Ont. C.A.). [23] The appeal judge upheld the trial judge’s decision to take judicial notice of posted 100 km/h speed limit signs along therelevant

section of Highway 11 at the time the appellant was ticketed for speeding. In the appeal judge’s opinion, the trial judge wasentitled to find that the existence of the required official posted signs was notorious and would not be disputed among users of thehighway. I agree with the appeal judge’s conclusion that the speed limit on the relevant portion of Highway 11 is so notorious as not tobe the subject of dispute among reasonable persons. Furthermore, nothing reasonably indicates that the trial judge took judicial notice ofthe posted signs because of his personal knowledge of their existence.

He did refer to his personal knowledge of the matter but it is clearthat such knowledge was not key to his decision. That said I turn to the second issue. B.

Having regard to the officer having testified that knowing whether the tuning forks were generating the prescribed frequencywas essential to the validity of his evidence, did the appeal judge err in failing to find the appellant’s conviction was unreasonable? [24] The officer described the radar unit as a device capable of transmitting radio waves and receiving those radio waves when theyare reflected back to the radar unit by an object moving towards the radar unit.

He confirmed that if the radar unit is properly calibratedit can calculate the speed of an oncoming object based on the difference between the frequency of the radio waves it transmitted and thefrequency of the reflected radio waves. The officer testified that the accuracy of the radar unit had to be regularly checked by means oftuning forks that are known to generate a prescribed frequency, when struck. [25] While the following observations by A. Shakoor Manraj, Q.C. and Paul D.

Haines in The Law on Speeding and SpeedDetection Devices, 3rd ed. (Markham: LexisNexis Canada Inc., 2007) are not evidence in the instant case, they are consistent with theofficer’s evidence regarding the role of tuning forks and the kind of maintenance they require: Ideally, the radar unit should be calibrated by testing its speed registration mechanism against moving vehicles of known speed.This, however, is impractical and is why tuning forks are substituted.

When a tuning fork, corresponding to a specific velocity, is set invibration in the midst of the pulsed wave train being emitted by the radar’s transmitter, that portion of the wave train being reflectedback to the receiver by the tuning fork is compressed to the same extent as a portion of the reflected wave train would be if it werebouncing back from a moving vehicle traveling at the same specified velocity. … Consequently, all tuning forks should be routinely checked by a certified technician with the proper gauging instruments.

Asurface scratch of only 1/20,000 of a centimetre was enough to cause an inaccurate reading by eight kilometres in a test incident. … Consequently, tuning forks that are to be used for calibration testing must be periodically checked for reliability and certified for useduring a specified time interval with available documentation, so that the operator of the radar system may inspect them for time lapseand, if need be, request replacements. (pp. 107–09) [26] The radar unit in question is not an instrument whose performance is deemed by legislation to be accurate.

Thus a judge, whenrelying only on the results generated by a radar unit to ground a conviction for speeding, must be satisfied beyond a reasonable doubt thatthe results generated by the radar unit were accurate. This will involve, inter alia, being satisfied that the unit was working properly. Inthe instant case, the Crown did not file in evidence an s. 258(2)(

a) certificate confirming the accuracy of the tuning forks used by theofficer. Nor did the officer have personal knowledge of whether his tuning forks were vibrating at the required frequency at the relevanttime. [27] As previously noted, the appellant challenged the accuracy of the speed calculated by the radar unit on the ground that itsaccuracy cannot be established beyond a reasonable doubt in the absence of evidence that the tuning forks used to test the accuracy of theradar unit produced a prescribed frequency when struck. Against this background, I turn to the appeal judge’s decision. [28] The appeal judge agreed with the trial judge’s

interpretation of Gibson, supra, as having established that where the accuracy oftuning forks used to test the radar unit had not been proven by way of a s. 258(2) test and certificate, the validity of speed readingsgenerated by a radar unit can still be proven beyond a reasonable doubt if a qualified radar technician conducted the radar unit’s internaldiagnostic test and it confirmed the device was functioning properly and the technician opined that the unit was operating properly whenit was used to detect the speed of a vehicle. [29] In my respectful opinion, the appeal judge misconstrued the significance of Gibson to the evidence in this case.

In Gibson, Cst.Pepin, a police officer who routinely operated the subject radar device testified that the tuning forks for the radar device had been testedand that he had in his hand a certificate confirming their accuracy and was prepared to enter the certificate in evidence if “he had to.”Consequently Cst. Pepin knew the tuning forks he used had been tested and found to be accurate. It is only due to the s. 258(2) certificatenot being entered in evidence that the learned appeal judge had to rely on the evidence of Cst.

Pepin to the extent he opined that his radarunit correctly identified the prescribed radio frequency generated by his​ tested and certified tuning forks and that other tests indicated hisradar unit was functioning properly.

In those circumstances, the appeal judge was able to conclude beyond a reasonable doubt that Cst.Pepin’s radar unit correctly calculated the speed of the accused’s vehicle. [30] Thus, assuming without deciding that Gibson properly states the governing law, it does not apply to this case where there is noevidence of the officer’s tuning forks having been tested or certified to be accurate pursuant to s. 258(2) of The Act, or otherwise provento generate the prescribed frequency when struck. In Gibson, Cst.

Pepin was not required to determine or to opine on the accuracy of histuning forks because he had a certificate in hand that confirmed they were accurate. In this case, the officer had nothing before himestablishing the accuracy of his tuning forks. [31] However, of fundamental importance to this case, is that at trial the officer agreed that it was “essential” to the validity of hisevidence that the court know whether the tuning forks he used to test the radar unit were vibrating at the proper frequency. There was nosuch evidence.

Thus, on the whole of the evidence before the trial judge, and particularly the honest admission by the officer, I conclude

that a properly instructed trier of fact acting judicially, and aware of the officer’s qualified evidence, could not have reasonably arrived at a conclusion that the appellant was driving at 135 km/h. In the result, I find the decision of the appeal judge to be in error and would allow the appeal and set aside the conviction of the appellant. [ 32 ] In light of this conclusion, it is not necessary to consider the appellant’s argument to the effect that there is a distinction between the maximum allowable speed on a highway and the existence of official signs posting that speed and that, in order to secure a conviction for breach of s.199(1)(

b) of The Act , the Crown must prove both matters beyond a reasonable doubt. VI. Conclusion [ 33 ] I would grant the appellant leave to appeal, allow the appeal and set aside the conviction of the appellant. DATED at the City of Regina, in the Province of Saskatchewan, this 14th day of August, 2014 . “Ottenbreit J.A.” for Klebuc J.A. I concur “Richards C.J.S.” Richards C.J.S. I concur “Ottenbreit J.A.” Ottenbreit J.A.