R. v. Guinn 

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M.B. JENSEN appearing for the Appellant
W.F. GUINN appearing on his own behalf

THE COURT: (Oral)

This is an appeal by the Crown in respect of the dismissal of its case against Wayne F. Guinn in respect of a motor vehicle offence, that is, speeding, which Mr. Guinn disputed and was dismissed by Justice of the Peace Hayes on April 1, 1997.

Mr. Guinn was charged pursuant to section 76.1(2) of the Motor Vehicle Act (which is now section 83.1(2) of that Act) with speeding on November 28, 1996. The evidence of the speeding offence was gathered through the use of a prescribed speed monitoring device or photo radar. Mr. Guinn disputed the ticket, and, as I have said, the dispute hearing was heard and the charge against him dismissed on April 1, 1997.

At the dispute hearing, the Crown presented its case by way of certificate evidence. Section 76.2(2) of the Motor Vehicle Act (which is now section 83.2(2)) provides: "An enforcement officer may provide, by signing a completed certificate in the prescribed form, evidence of an offence (a) by an owner of a motor vehicle under section 76.1(2) or (b) by another person under a provision referred to in section 76.1(2) if evidence of the offence was gathered through the use of a speed monitoring device prescribed for the purpose of that section."

Section 76.2(3) (which is now section 83.2(3)) states that "A certificate under this section is, without proof of the signature or the official position of the person signing the certificate, evidence of the facts stated in the certificate." There were three certificates tendered as evidence by the Crown. Those are: A Certificate of an Enforcement Officer Qualified Operator; a Certificate of Vehicle Ownership; and the certificate which is in issue in this appeal, Certificate of Enforcement Officer Photographic Evidence (Receding from Speed Monitoring Device).

The Certificate of Photographic Evidence is a letter that is prescribed by the regulations under the Motor Vehicle Act. It is a certificate signed by an enforcement officer, and it contains the following information. First of all, it reads: "I, Joanne Lynn Sheardown," (who is the enforcement officer who signed the certificate) "an enforcement officer, certify that I viewed the image attached as part of this certificate."

The next paragraph reads: "The image was gathered and recorded by a prescribed speed monitoring device." That paragraph then goes on to describe certain information contained on the photographic image which is attached to the certificate. That is called the data line, and the information with respect to the data line was not in issue and is not in issue in this appeal.

The certificate provides in the third paragraph as follows: "I have determined that the photographed motor vehicle recorded in the image receding from the prescribed speed monitoring device bears the rear licence plate number DKL 150 issued in the jurisdiction of British Columbia."

The certificate then contains the date, in this case 97/01/07, the enforcement officer's signature, her identification number, and the enforcement organization.

At the dispute hearing Mr. Guinn objected to the admissibility of this certificate, that is, the Certificate of Photographic Evidence, on the grounds that the licence plate number and the jurisdiction of the licence plate in the photograph of the vehicle, the rear of which is shown in the photograph, is not legible or discernible. He maintained in that hearing and maintains here that the licence plate cannot be made out. He says that it cannot be discerned whether there are letters or numbers shown on the licence plate and what the jurisdiction of that licence plate is. He made that argument before Justice of the Peace Hayes. Justice of the Peace Hayes looked at the photograph and determined that he could not read the licence plate number or make out the jurisdiction, and on that basis he excluded the photographic evidence as being unreadable. He then determined that the photograph was an integral part of the certificate because the certificate refers to the photographic image and thus excluded the certificate as a whole from evidence. The certificate being excluded, that resulted in the dismissal of the case.

In this appeal, Crown Counsel argues, first of all, that the Justice of the Peace erred in excluding the certificate on the grounds that it was inadmissible. He argues, secondly, that if the certificate was admitted, the result of excluding the evidence is nonetheless incorrect because the illegibility or indiscernibility of the licence plate number is not evidence to the contrary that would exclude the admissibility of the evidence in the certificate.

Mr. Guinn's submissions on this appeal are directed only to the first point, to the correctness of the Justice of the Peace's ruling that the certificate is inadmissible. He says, in effect, that the legislature has provided in section 76.2(2) for a prescribed form. The prescribed form provides for the photograph to be attached and to be referred to by the enforcement officer. He says that the legislature must, therefore, have intended that the facts or the evidence shown by the photograph be legible.

The Crown says that the legislation is clear as to the pre-conditions for admissibility of the certificate and that it is not up to the court to imply or read in other conditions. The conditions set out in the statute are four in number: firstly, that the certificate be made by an enforcement officer; secondly, it be signed and completed; thirdly, that it be in the prescribed form; and fourthly, that it be related to an offence under section 76.1(2). Crown counsel says, those conditions being satisfied, the certificate is then admitted and is prima facie evidence of the facts stated. That, he says, is made clear by section 76.2(3) of the Motor Vehicle Act.

Crown counsel cites in support of his submissions R. v. Teague, (1972) 11 CCC (2d) 191 (B.C.C.A.) and R. v. Crosthwait (1980) 52 CCC (2d) 1829 (S.C.C). Both of those cases dealt with the provisions relating to breathalyzer samples, which are similar to those in issue under the Motor Vehicle Act. They provide for the Crown to tender evidence in certificate form and provide that those certificates are admissible as evidence in the case. In both cases, it was argued that there were conditions relating to the admissibility of the analyst's certificate relating to the proper operation of the breathalyzer machine. In both cases, the courts rejected the arguments that those conditions were pre-conditions to the admissibility of the certificates. They held that the statute provides for admissibility and that further conditions were not to be implied.

Crown counsel argues that once the certificate is admitted, having satisfied the conditions set out in the statute, section 24 of the Interpretation Act, R.S.B.C. 1996, c.238, says that the presumption that the certificate is evidence of the facts stated therein is a rebuttable presumption, rebuttable by evidence to the contrary. The standard with respect to the raising of evidence to the contrary to rebut the presumption that the evidence in the certificate is evidence of the facts stated therein is set out in R. v. Teague at page 138. It is any evidence that is sufficient to raise a reasonable doubt as to the evidence of the offence stated in the certificate.

Under the Motor Vehicle Act, a person accused of an offence against whom a certificate under this section is produced may with leave of the court require the attendance of the enforcement officer who signed the certificate for the purpose of cross-examination. That provision was in section 76.2(4) and is now in section 83.2(4) of the Motor Vehicle Act, This case, of course, did not get that far because the Justice of the Peace excluded the certificate on the basis that the photograph could not be read.

I agree with Crown counsel's submissions in this case that the Justice of the Peace erred in excluding the certificate on the grounds that it was inadmissible. The legislature did not say that the judge hearing a dispute must be able to read the photograph and that judge must be able to make out the licence plate and the jurisdiction. What the legislature says is that an enforcement officer, in order to use a certificate as evidence, must be in a position to sign and complete a certificate setting out the information required in the prescribed form. The certificate requires that the enforcement officer state that she has determined the licence plate number and that it is issued in the particular jurisdiction.

In my view, the procedure provided by the statute not only provides for the Crown to provide evidence on an expedited basis, it avoids the kind of debate that took place in this case about the subjective ability of a particular person to read or not read the licence plate or the jurisdiction on the photograph. If the accused person wishes to adduce evidence to the contrary, including by cross-examining the enforcement officer as to how she made the determination that she did, the opportunity is available to do that.

I find that the certificate should have been admitted pursuant to the statutory provisions and allow the Crown's appeal.

THE REGISTRAR: Are you ordering a new trial?

THE COURT: And order a new trial, yes.

Rev: 1998.09.29