R. v. Etherington 

---

Ms. A. Mahaffey
Counsel for the Crown

Mr. Michael Etherington
Defendant, representing his own self

Cases considered:

R. v. Anutooshkin (1994), 92 C.C.C. (3d) 59 (B.C.C.A.) - considered.
R. v. Clark (1973), 1 O.R. (2d) 210 (H.C.J.) (1974), 3 O.R. (2d) 716 (C.A.) - distinguished.
R. v. Cook Action S.LB No. 0550 N.S.S.C. unreported - considered.
R. v. Keenan (1994), 3 M.V.R. (3d) 21 (B.C.S.C.) - distinguished.
R. v. McCulloch (1970), 3 C.C.C. (2d) 258 (N.S.Co.Ct.) - considered.
R. v. Rasmussen (1980), 9 M.V.R. 21 (B.C.S.C.) - considered.
R. v. Redden (1978) 1 M.V.R. 119 (N.S.S.C.) - followed.
R. v. Ross (1981), 11 M.V.R. (2d) (N.S.Co.Ct.) - considered.
R. v. Schaeffer (1989), 22 M.V.R. (2d) 256 (B.C.Co.Ct.) - considered.
R. v. Strong (1988), 13 M.V.R. (2d) 106 (N.S.Co.Ct.) - considered.

The Criminal Code R.S.C. 1985, c.C-46.
     s. 258(6)

Motor Vehicle Act R.S.B.C. 1979, c.288.
     ss. 75, 76, 76.1, 76.2
     ss. 151(1), 151(3), 152
     ss. 202, 211(1)(h), 211(2)

Motor Vehicle Act Regulations B.C.Reg 26/58
     ss. 41.01, 41.02
     Division 23 and Schedules

Offence Act R.S.B.C. 1996, c.305.
     s. 121(2)(b)

Terence Anderson and William Twining, Analysis of Evidence: How to do Things with facts Based on Wigmore's Science of Judicial Proof (Boston: Little Brown, 1991).

Sir Rupert Cross, Statutory Interpretations (London: Butterworths, 1976).

A. Shakoor Manraj and Peter Douglas Haines, The Law of Speeding and Radar, Second Edition (Toronto: Butterworths, 1991).

John Sopinka, Sidney N. Lederman and Alan W. Bryant, The Law of Evidence in Canada (Toronto: Butterworths, 1992).

The Oxford English Dictionary, Second Edition, Volume XV (Oxford: Clarendon Press, 1989), pp. 449-53.

1. The defendant, Mr. Michael Etherington, was charged pursuant to s. 76.1(2) the Motor Vehicle Act R.S.B.C. 1979, c.288 as a owner of the vehicle bearing British Columbia licence number EBT908, a 1995 model Nissan Pathfinder, for driving over the posted speed limit of 80 km/h which is contrary to s. 151(3) of the Motor Vehicle Act.

2. The Crown adduced evidence by way of entering three certificates.

3. Certificate number 1, "Certificate of Enforcement Officer, Photographic Evidence (Receding from Speed Monitoring Device)", was entered by the Crown as an evidence pursuant to s. 76(2) [should be 76.1(2)] of the Motor Vehicle Act. This certificate appears in schedule A of the Motor Vehicle Act Regulations, B.C. Reg. 26/58. On this certificate, an Enforcement Officer has stated that on 17 September 1996 at 1624 hours at a unique deployment site bearing code number 105201, a vehicle bearing licence number EBT908 was recorded travelling at the speed of 91 kilometers per hour while receding from the speed monitoring device. The image and data pertaining to the allegedly offending vehicle were recorded on a film roll number A496 on a photograph frame number 019. The certificate also contains number 111, reflecting the identification number of the qualified operator. The certificate was signed on 16 November 1996 by an Enforcement Officer #607 of the Integrated Traffic Camera Unit. Attached to this certificate is the vehicle image and data line as recorded by the prescribed speed monitoring device.

4. Certificate number 2, "Certificate of Enforcement Officer: Qualified Operator. Motor Vehicle Act: Section 151(3)", was entered by the Crown as an evidence pursuant to s. 76(2) [should be 76.1(2)] of the Motor Vehicle Act. This certificate appears in schedule F of the Motor Vehicle Act Regulations, B.C.Reg. 26/58. On this certificate, the Enforcement Officer #111, whose number appears as identification number of the qualified operator on the data line underneath the vehicle image, has stated that on 17 September 1996 between 1546 and 1755 hours, the said officer was operating a prescribed speed monitoring device, namely AutoPatrol® (Speed Camera: Model #PR100), at a unique deployment site at "Hwy 99 south bound approximately 50 m. from the Loggers Creek at or near Squamish in the Province of British Columbia." This site bore a unique deployment code number 105201. The speed of the said vehicle was measured and recorded on a photograph while it travelled south at that unique deployment site.

5. The speed monitoring device named in Certificate 2 is prescribed pursuant to s. 76.1(8) of the Motor Vehicle Act and has been named as "AutoPatrol® (Speed Camera: Model #PR100)" in s. 41.01 of the Motor Vehicle Act Regulations. Enforcement Officer bearing identification number 111 has certified that on the day and time in question and at the unique location, the said prescribed device was tested in accordance with the manufacturer's specifications and it appeared to be in proper working condition for accurately and simultaneously measuring and recording the speeds of vehicles in its range. In a subsequent paragraph, the said officer provides description of the numerals and letters recorded at the bottom of the vehicle image that is attached to the Certificate number 1.

6. The enforcement officers signing Certificate numbers 1 and 2 are designated entities pursuant to s. 121(2)(b) of the Offence Act R.S.B.C. 1996, c.305.

7. Certificate number 3, "Vehicle Ownership: Licencing Information", was entered by the Crown as an evidence pursuant to s. 75 of the Motor Vehicle Act. This certificate contains an extract from a record kept by the superintendent regarding the licensing information for the vehicle bearing BC licence number EBT908. This certificate, signed by the superintendent on 7 November 1996, establishes that from 20 November 1995 to the day of the issuance of this certificate Mr. Michael Etherington of North Vancouver, BC was the registered owner of the said vehicle.

8. The defendant, Mr. Etherington, stated that he travels Highway 99 at least three times a month for business and for pleasure. Noting that the said highway is a "very dangerous highway", he went on to state that

I do my best to go the speed limit, to drive at the posted speeds. And I guess I was clocked at ninety-one kilometers, approximately, and I feel that I -- I wasn't going that speed, but the other question I had was, how close the sign -- the posted sign of speed was to -- to where I was ticketed because, along Highway 99, the kilometre amount fluctuates between eighty and ninety kilometres, a few times, I think. And I -- I, all the time, follow the speed limit, to the best of my ability and I've never once been pulled over for speeding. I have a good driving record...¹
9. While emphasising his "good driving record", Mr. Etherington questioned the placement of the regulatory signs. He also mentioned that there is some sort of "grace amount (sic) of 19 kilometers" implying that his alleged speed of 91 kilometers measured and recorded by the prescribed device was either one kilometre over if the maximum speed limit was 90 km/h or 11 kilometers if it was 80.

10. The defendant on cross examination testified that he frequently looks at the speedometer of his vehicle. This is an excerpt from cross examination of the defendant as conducted by Ms. Mahaffey:

Q. Mr. Etherington, were you looking at your speedometer as you were driving?
A. Yes. I -- I quite frequently look at my speedometer when I drive.
Q. I see. But you don't look at it all the time?
A. No, I keep my eyes on the road mostly.² (emphasis is mine).
 
11. During the trial the Crown raised four major issues by proposing the following:
a) Under what circumstances leave may be granted to the defendant by this Court to cross examine the enforcement officer whose signature appears on Certificate #2.

b) Proof of the location of the traffic sign is not required. It's sufficient to state that there is a sign.

c) In the event that there is no sufficient proof of the sign posted on a highway then defendant must be found guilty of violating statutory speed limit of 80 km/h pursuant to s. 151(1) of the Motor Vehicle Act.

d) Even if the speed at the unique location where the defendant's motor vehicle was photographed was 90 km/h, the accused is still exceeding the speed limit.

(a) Under what circumstances leave may be granted to the defendant by this Court to cross examine the enforcement officer whose signature appears on Certificate #2.

12. Section 76.2(4) of the Motor Vehicle Act stipulates that:

A person against whom a certificate under this section is produced, may with the leave of the court, require attendance of the enforcement officer who signed the certificate, for the purpose of cross examination.
 
13. The above provision is similar to the provision contained in s. 258(6) of the Criminal Code R.S.C. 1985, c. C-46. I advised the defendant, who represented his own self during the proceedings, that he may choose to cross examine, subject to the leave of this court, the enforcement officer with respect to the substantive issue of the placement of the regulatory maximum speed signs as well to their visibility and unobstructiveness.

14. Counsel for the Crown Ms. Mahaffey submitted that "there is no reason for this Court to call the qualified operator, pursuant to the principles that have been spelled out in law, which I have provided you."³ The Crown stated that the purpose of cross examining the enforcement officer should be to challenge the contents of the certificate [R. v. Rasmussen (1980), 9 M.V.R. 21 (B.C.S.C.)]; or be based upon the inference that failure to allow such cross examination would impair the right of the defendant to make full answer and defence [R. v. Anutooshkin (1994), 92 C.C.C. (3d) 59 (B.C.C.A.)]; and should not compromise the legislative purpose of putting "some control on the calling of technicians" while balancing it "with the very important public object of allowing the defendant to have a full answer and defence" [R. v. McCulloch (1970), 3 C.C.C. (2d) 258 (N.S.Co.Ct.)].

15. Although Mr. Etherington was duly advised as to his rights pursuant to s. 258(6) of the Criminal Code and s. 76.2(4) of the Motor Vehicle Act, he chose not to pursue the matter with respect to cross examining the enforcement officer. Any further discussion of this issue would therefore be moot.

(b) Proof of the location of the traffic sign is not required. It's sufficient to state that there is a sign.

16. Section 151(3) of the Motor Vehicle Act reads as follows:

(3) Where the Minister of Transportation and Highways has caused the sign to be erected or placed on a highway limiting the rate of speed of motor vehicles or a category of motor vehicles driven or operated on that portion of the highway, a person shall not, when the sign is in place on the highway, drive or operate a vehicle on that portion of the highway at a greater rate of speed that that indicated on the sign for that category of the motor vehicle.
 
17. In my opinion, the Crown has the burden to prove the following:
(a) that on a day and time question a vehicle bearing licence plate number EBT908 was at the unique deployment site;

(b) that the vehicle in question was speeding contrary to regulatory maximum speed limit in that area;

(c) that on the day and time in question there were regulatory signs posted which were clear and unobstructed.
 

With respect to issues (a) and (b) I believe that the Crown has met its burden of proof.

18. It is issue (c) from the above paragraph #17 that will be examined in this judgement. At the heart of my analysis is the presumption that the Minister of Transportation not only causes regulatory signs to be erected but also has duty to cause these signs to be maintained in proper condition. I respectfully presume that the purpose of erecting regulatory signs is to ensure public safety and this can be met when the authority that places the signs ensures that signs are posted at reasonable distance and are conspicuous. The contrary would appear as if that same authority is playing some sort of "Where's Waldo" game with public. As well, the same authority ensures reasonable maintenance of such signs. The evidence of these facts would create a rebuttable presumption of a prima facie proof of signs. It would then be up to the defendant to adduce evidence to the contrary.

19. The Crown is proposing that a simple statement that a regulatory sign was erected pursuant to s. 151(3) is a sufficient evidence and that the Crown had no burden to prima facie prove the existence of such sign by adducing evidence of location or physical condition of the said sign. In R. v. Strong (1988), 13 M.V.R. (2d) 106 (N.S.Co.Ct.) the learned appeal Judge while overturning acquittal of the defendant, stated that

...the learned trail [sic] Judge has misinterpreted the provisions of s. 94(1). The section clearly provides that the Minister or traffic authority may fix maximum rates of speed for motor vehicles traversing any part or portion of a highway. The said authority may then erect and maintain signs notifying the travelling public of such rate of speed. Implied of otherwise, there is no provision in the said section that the signs be erected so as to be always visible to a motorist traversing a section of highway covered by the speed approved for the area.

Common sense would indicate that it was never the intention of the legislature to place the interpretation found by the learned trial Judge on the said section. If this was the intention of the legislature, it would mean cluttering up our villages and towns with speed zone signs erected at each street intersection, as well as erected on each street at intervals so that they would always be visible to operators of motor vehicles traversing said streets, or highways.
 

20. In my respectful opinion, in Strong (supra) the great deal of weight is given to evidentiary elements that the Crown must adduce. These elements being "the speed limit, fact of signs being erected and displayed and their location on the date of the offence" (p.107) (italics are mine).

21. As such, the mere statement that "there was a sign in place" is probably a factum probandum, that is a proposition which must be proved by adducing material evidence.⁴ In the absence of material evidencing this proposition, this proposition may appear to be a simple "presumption of fact". According to Wigmore, presumption of fact is "merely an improper term for the rational potency or probative value of the evidentiary fact and is regarded as not having this necessary legal consequence." Needless to say, Wigmore advocated that this term be "discarded as useless and coufusing."⁵ In order to establish a prima facie proof of the sign being in place, the Crown needs to adduce evidence regarding display and location of such sign on the day and time in question. Strong (supra) does take into account evidentiary elements such as "display" or "location". The main concern of the learned Appeal Court Judge was probably quantitative or how many signs need to be erected.

22. In R. v. Redden (1978) 1 M.V.R. 119 (N.S.S.C.) it was affirmed that a speed sign 5 kilometres prior to the place of offence was not a sign. In my opinion it is important that the enforcement officers setting up unique sites must ensure that there is a maximum speed limit sign at a reasonable distance from this location. They would then be able to adduce evidence probably to the following effect and appended to the last sentence of the last paragraph in Certificate #2 "The said sign, located approximately (distance) from the unique deployment site (number) was seen by me at (time) hours on (day) and it appeared to be clear and unobstructed. From the said sign to my deployment site that day there was no other maximum speed regulatory sign."

23. The case of R. v. Keenan (1994) 3 M.V.R. (3d) 21 (B.C.S.C.) in particular paragraph 14 that appears on page 25 and reads as follows:

On the second point, evidence of speed limit signs is sufficient proof of a by-law which limits speed. See R. v. Clark (1974), 18 C.C.C. (2d) 52 (Ont. CA.). In this case, the by-law was sufficiently proven since there was a uncontradicted evidence at the trial that the offence took place in the Municipality of Pitt Meadows and that signs were posted.
 
24. Keenan (supra) is distinguishable from the case at bar on the primary ground of the nature of issues that were dealt in that case.

25. In my respectful opinion, the issue relevant to signs that the Honourable Selbie J. dealt with in Keenan was not about the sufficiency of evidence with respect to the signs per se. The issue was whether or not the signs were a proof of the municipal by-law limiting the speed of motor vehicles. Affirming an earlier decision of the Ontario Court of Appeal in an identical case of R. v. Clark (1973), 1 O.R (2d) 210 (H.C.J.) (1974), 3 O.R (2d) 716 (C.A.), the BC Supreme Court held that "evidence of speed limit signs is a sufficient proof of by-law which limits speed" that is, regulatory signs when erected create a "presumption of regularity" with respect to the by-laws. But the Crown must adduce sufficient evidence to prove beyond reasonable doubt placement of such signs. In my opinion, placement, unobstructiveness and distance the sign is located from the site of an alleged offence are essential evidentiary elements that the Crown must adduce to prima facie prove the existence of the signs. Only after these elements are adduced that the signs can be presumed to be erected under lawful authority. In England, for example, traffic lights are presumed to be in working order because of the presumption of regularity. "However, the presumption may not be used to establish an ingredient of a crime in criminal proceedings if the regularity and the propriety of the matter in question are disputed at trial."⁶

26. In sum, the probative value of signs is contingent upon whether or not the Crown has established a prima facie case of an alleged disobedience of the said signs. In other words, when charging someone for contravening its by-law, a municipality must then prove that these signs were duly erected. As well, prove that on the day of the commission of the alleged offence these signs were posted at a specific location and were clear and unobstructed. In Keenan it was affirmed that the burden of proof is on the Crown to present an uncontradicted evidence at the trial that the signs were erected.

27. In this case, the Crown's evidence with respect to signs as contained in the last sentence of the last paragraph of Certificate number 2 was insufficient in it that it failed to state the approximate location of the signs in question and whether or not these were clear and unobstructed.

28. The last sentence of the last paragraph of Certificate number 2 states that:

Throughout those hours of operation, on that date, there was a sign in place which the Minister of Transportation and Highways caused to be erected, pursuant to section 151(3) of the Motor Vehicle Act, indicating a posted speed limit of 80 kilometres per hour (km/h) for all motor vehicles at that location travelling in that direction.
 
29. During his evidence in chief, the defendant Mr. Etherington made several queries about the whereabouts of the alleged signs. This led me to that infer that he either did not see any sign or he saw a 90 km/h sign and was surprised to see a violation ticket charging him for driving at 91 km/h. It must be mentioned here that alongwith the aforementioned Violation Ticket (VT), he also received a public information brochure containing information that the "cameras are set to take pictures of vehicles that exceed a certain threshold of speed. Generally that threshold will be set somewhere between 10 and 19 kilometres over the posted limit. depending on weather, visibility and traffic conditions."⁷ He was emphatic in stating that be did not see any signs posted in the direction of his travel. I have no reason to disbelieve him. The Crown is of the belief that a "contradiction has to be more than a mere statement contradicting the evidence... The Crown would submit that a mere contradiction of the Crown's evidence by the defendant is not sufficient to raise a doubt with respect to speed limit in that area."⁸ The Crown's argument would be palatable if supported by a prima facie proof of the signs and not a mere statement that is probably based upon an ostensibly overstretched presumption of regularity.

30. For example, it could be argued that prescribed device AutoPatrol® (Speed camera #PR100) that has a statutory personality would probably be a better "candidate" for presumed regularity or accuracy. Yet, the entire paragraph 2 in the Certificate #2 is devoted to establishing its accuracy by adducing evidence of tests. The Crown's inability to adduce sufficient evidence of signs must provide benefit of doubt to the defendant.

31. The Oxford English Dictionary defines the term "sign" as a "signal; to intimate, to convey." The commonsense ingredients of a sign are that it must be perceptible by sight or hearing because of its intended use for conveying regulation, warning, direction or information. In Pullman Co. v. Carter 6S.E. (2d) 351, 355, 61 Ga.App. 543, a sign is defined as "a lettered board or other conspicuous notice or publicly displayed token or notice." In all of the definitions here the universal thread is that of the conspicuousness of the sign.

32. Section 151(3) of the Motor Vehicle Act clearly states "when a sign has been caused to be erected..." accordingly the onus is on the Crown to show that the sign was caused to be erected through presentation of the facts with respect to the clarity, unobstructiveness and placement of a sign vis-à-vis the location of the prescribed device. I realise that the Motor Vehicle Act is at best "silent" about the placement of the signs. But this does not exonerate the Crown to adduce evidence with respect to the location of the signs.

33. In the case of Mr. Etherington, such requirement becomes extra necessary because on Certificate #2, the "unique location" is identified as being "Hwy 99 50 m. north of Loggers Creek". The Crown stated that "50 m." means "50 metres" but that was only an assumption. The Concise Oxford Dictionary defines "m." as "abbr. maiden (over); male; mark(s); married; masculine; metre(s); mile(s); milli-; million)s); minute(s)."⁹ The assumption that "50 m." stands for "50 metre" is as good an assumption as "50 miles" or "50 minutes". These assumptions make the unique location #105201 anywhere from being 50 metres north of the Loggers Creek to being either 50 miles or 50 minutes drive north.

34. The great deal of emphasis on markings and visibility aspect of the signs in Division 23 of the Motor Vehicle Act Regulations could be inferred as an indicator of the desire of the framers of this statute that the posted regulatory signs ought to be seen and followed. That is the purpose of speed limit signs is public safety and not aesthetic pleasure. An evidence of this effect when uncontradicted would meet evidentiary standard established in Keenan. In this case, the Crown has not been able to adduce "uncontradicted evidence" of the signs beings posted as is the requirement in such cases as established by Selbie J. in Keenan.

(c) In the event that there is no sufficient proof of the sign posted at a highway then defendant must he found guilty of violating statutory speed limit of 80 km/h pursuant to s. 151(1) of the Motor Vehicle Act.

35. The Crown's proposition is that since the defendant was doing 91 km/h, even if there was no sign posted, he was in contravention of s. 151(1) of the Motor Vehicle Act. The said section reads as follows:

(1) Subject to this section, a person shall not drive or operate a motor vehicle on a highway in a municipality at a greater rate of speed than 50 km/h, and a person shall not drive or operate a motor vehicle on a highway outside a municipality at a greater rate of speed than 80 km/h.
 
36. In R. v. Cook Action S.LB No. 0550 N.S.S.C., it was stated that
The speed limiting provisions of the Motor Vehicle Act make it clear that whether or not, there is prima facie a speed limit on all highways in Nova Scotia of 80 kilometres per hour. Travel in excess of that speed is an offence under the Act unless the Accused is able to establish that a higher speed has been approved and that sins [sic] are erected confirming the higher limit. No such evidence was offered and, indeed, there was no contention that the road in question was one upon which a higher speed limit had been approved.
 
37. I agree with Cook (supra) that whether posted or not the prima facie proof of speed limit on BC highways is 80 km/h unless otherwise stated pursuant to the various sections of the Motor Vehicle Act. I emphasise the question of unless otherwise stated. That is, the burden of proof is on the defendant to establish that on a highway in question there are signs establishing speed limits different from the statutory limit as set out in s. 151(1). In this case, Mr. Etherington has established a rebuttable presumption that the speed limit on Highway 99 fluctuates between 80 and 90 in the proximity of the unique deployment site where his vehicle was photographed on the day and time in question. The Crown has chosen to present evidence to the contrary to this presumption.

38. As stated above, the Crown has not been able to adduce sufficient evidence for the speed limit signs. Hence an inference that the speed limit signs, if at all present, may have shown maximum limit of 90 km/h because Mr. Etherington stated that he had been diligent in periodically checking his speedometer and that he was certain of driving within the speed limit. The Crown did not contradict Mr. Etherington's contention that the speed limit fluctuates between 80 and 90 km/h. His vehicle was photographed doing 91 km/h. In Cook (supra) the defendant was clocked at 130 km/h. The learned Judge maintained that the vast difference between the speed limit and the speed of the accused has rendered many arguments of the defence weightless. In the case of Mr. Etherington the difference is one kilometre if we accept the theory that there probably was a sign showing maximum speed limit of 90 km/h.

(d) Even if the speed at the unique location where the defendant's motor vehicle was photographed were 90 km/h, the accused is still exceeding the speed limit.

39. The strict statutory application would indeed lead to the inevitable conclusion that when a maximum is set at 90 even one kilometre over that speed would be an offence. However, such application would probably be extraordinary or even an abnormal instance. While the "construction of a statute is a question of law... The judge takes judicial notice of ordinary meanings contained in the statute and chooses the one that he considers to be the most appropriate in the context."¹⁰ Although I take judicial notice of ordinary meanings within the normative societal context, I am often challenged when dealing with, albeit rarely, speeding charges against the drivers going 3-4 km/h over the maximum speed limit. A driver charged with only 1 km/h over the limit is indeed an aberration. Must this aberration be cured by entering conviction for the defendant? In my respectful opinion such cure would in, all likelihood, be an aberration in itself.

40. Nevertheless, I agree with the Crown that doing 91 in a 90 km/h speed zone is an offence. However, I would like examine this issue in the context of public policy as well as legal precedence.

41. With respect to the question of legal precedence, I have not come across any case law that would instruct me on convicting a defendant who is going 1 km/h over the speed limit. I believe that it would be quite a Herculean task to prove an offence of speeding beyond reasonable doubt in this instance. If asked, the courts would then have an obligation to rule whether the presumption of accuracy of the prescribed devices imply their infallibility.

42. Mr. Etherington has also raised the issue regarding "threshold speed". His source of information is a brochure published by the Government of British Columbia under the authority of the Attorney General of BC. It may well be argued that officially-disseminated information regarding "threshold speed" being 10 to 19 kilometres over the maxmum speed limit may have created a presumption of an officially-induced error.

43. The fundamental task of a trier in the cases such as this one is to find the truth - "The essential purpose and feature of the trial system in our society is the search for the truth".¹¹ In this society the Courts are generally credited to be an institution that is in a perennial quest for truth. Public, who is told in an authoritative government brochure that there is some sort of "threshold speed" between 10-19 kilometres over the maximum speed limit does not deserve to be convicted in a Court of law for going one kilometre over the maximum speed limit. Such a conviction will probably erode legitimacy and acceptability of our legal system.

44. During trials involving the non-photo radar cases arising out of s. 151(3) or for that matter other sections of the Motor Vehicle Act respecting the signs such as 151(4), 151(7), 152 or 202, witnesses for the Crown, in order for them to establish prima facie proof with respect to the signs being disobeyed, clearly and at times painstakingly present their sworn or affirmed evidence as to the location of such signs and whether or not these were clear and unobstructed on the day and time of the commission of an alleged offence. Presentation of evidence with respect to location, clarity and unobstructiveness of the regulatory signs is one such standard which helps the trier's arrive at truth. I see no reason to compromise this standard when dealing with matters arising out of s. 76.1(2) of the Motor Vehicle Act.

45. The Certificate number 2 states that the signs were erected. But nowhere it is stated that approximately how far these signs were from the unique deployment site and whether or not on the day and time in question an enforcement officer personally saw these signs posted as well as clear and unobstructed.

46. The underlying purpose and value of the Motor Vehicle Act is public safety. In the overall scheme of this Act, signs play a vital role and in Division 23 of the Motor Vehicle Act Regulations fair elaboration is made as to quality of signs emphasising their visibility. Such statutory emphasis on visibility and clarity of signs ought to be reflected in the standards of evidence with respect to the signs.

47. Mr. Etherington successfully raised the question about the frequency of changes in the maximum speed limits on Highway 99. As such he successfully raised a reasonable doubt with respect to signs either not being posted or being temporarily covered in the direction of Mr. Etherington's travel. I have no reason to disbelieve him.

48. Based upon the evidence presented by the Crown and the defence, my interpretation of R. v. Keenan as well my analysis of the issues, I must enter an acquittal for Mr. Etherington.

Oral judgement and draft written reasons for judgement presented on 04 March 1997 at the City of Richmond in the province of British Columbia. Final written reasons for judgement completed and presented on 06 March 1997.
 

[signed]
Zahid Makhdoom, sitting justice

¹ Transcript p. 7.
² Ibid, p.12.
³ Transcript, p.11.
⁴ Terence Anderson and William Twining (1991) Analysis of Evidence: How to do Things Based on Wigmore's Science of Judicial Proof (Boston: Little, Brown and Co.) p.52.
⁵ John Sopinka, Sidney N. Lederman and Alan W. Bryant, The Law of Evidence in Canada (Toronto: Butterworths, 1992) p.104.
⁶ Sopinka et.al. (supra)., pp. 119-120.
⁷ BC Ministry of Attorney General. Photo Radar Program: Photo Radar Tickets (Brochure).
⁸ Transcript, p.20.
⁹ Seventh Edition: Oxford: The Clarendon Press, 1982, p. 606.
¹⁰ Sir Rupert Cross, Statutory Interpretations (London: Butterworths, 1976) p. 57.
¹¹ Sopinka, Lederman and Bryant (supra) pp. 1-2

Rev: 1998.09.29