R. v. Ianakiev 

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G. Nelson
Counsel for the Crown

J. Murao
Transcriber

(PROCEEDINGS RESUMED PURSUANT TO ADJOURNMENT)

THE COURT: Recalling violation ticket SA00844143, Ivan Ianakiev.

MS. NELSON: Your Worship, Nelson, initial G. for the Provincial Crown with respect to this matter. What I propose to do, Your Worship has raised some questions earlier in the day, is proceed through my submissions as I originally prepared them, and then deal with your outstanding concerns at the end of that.

THE COURT: Thank you.

MS. NELSON: Just for the record, by way of brief history, this prosecution was first commenced May 9th 1997. The Crown's case was put in, and the defendant applied for an adjournment to cross-examine the qualified operator, Dave Steinwand.

Our next court date was July 4th 1997. There was a brief direct examination of Constable Steinwand, then the cross-examination which was also brief. Your Worship asked some questions, as well, of the constable. The defendant then submitted his evidence which was brief. There was a cross-examination of the defendant. Defence case was closed.

At that point Your Worship raised two issues to be addressed by the Crown, and the case was adjourned for those submissions to be made, pending receipt of the Guinn decision from the British Columbia Supreme Court. The defendant did not want to re-attend on any other court occasion because of, as I recall, his work obligations, so we dealt with the defendant's submissions on sentence, should there be a conviction ultimately.

So the questions that Your Worship had raised, as I recall them, was first with respect to the vehicle image. Is that to be considered evidence in itself, not just the data line but the actual photo, or does the certificate override it? The second question was with respect to what Your Worship termed tampering. If the photo in itself is evidence, the indication given by the police officer is that we may be dealing with a photo which has been altered by the developer. The question being, is alteration permissible, and the second question, if the answer to the first question is yes, is the Crown required to give evidence of the developer?

In short, I'd submit that the answer to number one is no. The photo is not evidence in and of itself. It's the certificate that's evidence, and accordingly the second question does not need to be dealt with.

Briefly reviewing the evidence that's gone in so far, the Crown's evidence was in by way of the three standard certificates. Attached to the first certificate, the Certificate of Enforcement Officer Photographic Evidence (Receding From Speed Monitoring Device), is the Vehicle Image page which is a blank page basically with a picture on it.

There was then a brief direct of the qualified operator, Constable Wave Steinwand. In his direct examination, he dealt with the time of the photo, the time at which it was taken, and that was in the daytime, the time frame of the offence which, because it's a playground zone, is dawn to dusk, the location at which he was, the placement of the signs, in the area that he was, and with the darkness of the photo. He indicated that the reason the photo might be dark, he said it was raining on the day. He said he probably used his flash, but he could not recollect specifically. A flash tends to -- when reflecting off a plate, over-expose the photo. The developer's may darken the background of a photo to achieve a bright plate, so it can be read.

There was only one question asked by the defendant in cross-examination of the qualified operator. Question, "Are all the pictures that dark?" Answer, "No, the majority are not that dark." Question, "That's all of the questions I had to ask." So that was the entire extent of the cross-examination of the qualified operator.

The defendant then gave his evidence which was quite brief, as far as my notes indicate, and he said that he usually pays attention to the signs, and he has not been charged so far. He indicated that he's human and human's make mistakes and that he's sorry. There is no suggestion in his direct examination or in his direct evidence that I was there and it was before dawn, it was before dawn when the picture was taken, or I was there at night and the time wrong, there's nothing mentioned in the defendant's evidence with respect to the darkness of the photo. Now, on cross-examination of the defendant, he agreed that he was speeding, so that admission alone, I'd submit, is grounds for Your Worship to convict.

Now, with respect to the issues that Your Worship has raised, the decision of R v Guinn -- Her Majesty the Queen, I should say, and Wayne Guinn, which is a decision of the British Columbia Supreme Court, June 25th 1997. What I have provided to Your Worship is a transcript of the oral reasons for judgment of the Honourable Madam Justice Levine. Unfortunately the official reasons are not yet ready. I understand there's been some difficulty with the judge being on holidays and the transcriptionist being on holidays and that sort of thing. So what we have at this point is simply the transcript.

The Guinn decision says, and I'll just sort of summarize it, that the statement in the Certificate of Photographic Evidence (Receding From Speed Monitoring Device), or the first certificate, is prima facie evidence to which section 24 of the Interpretation Act applies. That means that the statement that the picture was taken at a certain time, and this statement was confirmed by the qualified operator in direct examination and not shaken in cross-examination, is prima facie evidence which must be accepted unless it's rebutted by evidence to the contrary.

Now, the pertinent parts of Guinn are at page 7, line 11, to page 8, line 10, and I won't read through all of that, but it's basically the Justice agreeing with Crown's submissions and endorsing the certificate method of putting in evidence, and indicating that evidence to the contrary, of course, is open to the defendant to produce.

In this case there is no evidence to the contrary. The defendant thought, after the Crown's certificates were in, that the photo looked a bit dark. There was nothing given as evidence by the defendant, either in direct or cross-examination with respect to this evidence -- or with respect to the darkness of the photograph that would constitute evidence to the contrary. In fact, the only evidence before Your Worship with respect to the darkness is the evidence of the certificate and the evidence of the qualified operator which explains the possible darkness. So, again, in answer to question one, is the picture evidence itself, the answer is no.

The evidence is not the photo, but it's the certificate, and this, I should note, is consistent with the decision of your colleague, sitting Justice of the Peace Morrison, in the decision of Hillcrest, where she said she's not prepared to read anything into the photo other than the vehicle and the plate.

The evidence before you, and that's something important to consider, shows a number of reasons why the photo could have been dark, and this should be sufficient explanation. Section 24 then kicks in, again of the Interpretation Act, to ask the question, is there evidence to the contrary, and what if any is there. And the question really is can the mere fact of darkness which has been explained by the qualified operator, amount to evidence to the contrary, and if so on what issue.

The only possible issue is with respect to the timing of the photo, because of the wording of the offence, which says dawn to dark, and whether or not the photo was taken during the day or the evening is crucial. Now, the qualified operator has clearly testified and explained the nature of the darkness, and that it relates not to a different time of day, but to a developing process and possibility the use of the flash and the weather. So all of the evidence that's before you supports the Crown's submission and the fact that the photograph was taken in the daytime and within the parameters of the section.

It is only speculative questions of the defendant and yourself that points to other than that. And the speculative question is not and cannot equal evidence to the contrary. Evidence to the contrary is some evidence that the photo was taken in the evening as opposed to the daylight, and again I submit that there is none. All the evidence that Your Worship has heard and has seen points to the fact that it was taken in the daytime.

With respect to Your Worship's specific concerns as itemized today, your first question was whether the captured image is evidence in and of itself. I think it's stated clearly in Guinn that the answer to this is no. The certificate is evidence and the photograph supports that evidence, but it's not evidence in and of itself.

THE COURT: Is there a particular section in Guinn that states that?

MS. NELSON: Again, it would simply be the section that I referred to, pages 7 to 8.

THE COURT: It was my impression from a cursory reading that the issue was raised, but I'm not convinced the issue was actually addressed. I'm in total agreement with the finding of Madam Justice Levine that I was in error in rejecting the admissibility of the certificate, but as yet -- and I have to give this a further review, although she did make a reference to the fact that the legislation -- one of the purposes or functions of the legislation is to avoid, you know, this type of debate - in paraphrasing what she said.

I'm not sure whether the debate that she refers to is with regards to the admissibility of the certificate evidence only, or if she's speaking to the broader issue of does the photo -- or the captured image which forms a part of the certificate constitute evidence in and of itself.

MS. NELSON: That would be my reading of the case, is that it deals with the second issue. Whether it's evidence in and of itself, as Your Worship will recall from the trial of Guinn, the debate that occurred - and it was really debate - was with respect to is the photo part of the evidence or not, and I expect that that's what she is referring to, as she did have a copy of the transcript. It's unfortunate she was not a bit more specific, but in any event, that's the Crown's position with respect to that issue.

Your second question was can the captured image be enough for leave to apply for cross-examination? Well, that's something that Your Worship has to decide. It's not something that the Crown decides. You already decided in this case that it was. The qualified operator came in. He dealt with the darkness issue, explained that, and there were no questions by the defendant to shake anything that he said under direct examination. Your third question again is, is a photograph evidence to the contrary in and of itself? I submit no. Again, as stated in Guinn, the certificate is the evidence, not the photograph. And again, I'd refer you to Hillcrest Plumbing and Heating where the JP says she's not prepared to read anything into the photograph.

With respect to your statement that the captured image is the entire case for the Crown. I would have to disagree. Again, it says in the case that a certificate is the evidence and the photograph simply supports it. So it's certainly not the case for the Crown, and in fact, it has been suggested by my colleagues that we are actually, in fact, able to proceed without the photograph, and Your Worship is aware of that submission.

With respect to your statement that the photograph may provide cues as to vehicle's time of day, et cetera, it may but it may not. Again, the certificate is the evidence, it's not the photograph, and again, Hillcrest deals with that. Your next question was does section 83.2(3), that's of the Motor Vehicle Act, which says that certificate evidence is permissible, plus section 24 of the Interpretation Act require that the facts itemized in the certificate be itemized in the legislation. I have to confess I'm rather confused about this question, and I don't entirely understand what Your Worship was meaning by that.

THE COURT: What I was doing in considering the issue was, because at this point in time, photo radar prosecution is largely supported by cases relating to breathalyzer law, that in looking at cases where -- such as Crosthwait and St. Pierre, where they discuss the implications of section 24 of the Interpretation Act RSC -- or now section 25 of the Interpretation Act RSC which mirrors our section 24 of the Offence Act RSPC, that in looking at the breathalyzer law found in the Criminal Code, the items that are permissible to have a presumption of accuracy and to appear in the certificate, are actually itemized in the legislation itself.

Whereas the photo radar legislation here under the Motor Vehicle Act is somewhat generic, and that the -- it simply says that a certificate under this section is evidence of the facts stated in that certificate. There is a similar proviso in the Criminal Code in breathalyzer law, but in addition to that, when you read backwards into the actual enforcement sections of the legislation, it specifies what evidence may appear in that certificate.

Now, I know that the certificate itself is prescribed by regulation, and it has a number of fill in the blank, shall we say, but the legislation itself is somewhat generic. There's a speed monitoring device that is approved, and has a presumption of accuracy. I just wondered if that was a pre-condition to the application of this presumption of accuracy to the body of evidence that's found in the certificates.

MS. NELSON: To that I would have to say no. If the legislature had intended for everything to be specifically itemized, they would have put that in the legislation. Because it's not in there, that means that that is not required. While photo radar relies to a certain extent on breathalyzer law, it's not identical to breathalyzer law and it is proceeding in its own way.

THE COURT: Yes. The legislative intent is also a critical issue. It hasn't actually been discussed to any great extent in these proceedings to date, but just a cursory reading of the precedent cases in breathalyzer law, legislative intent is a critical issue.

MS. NELSON: Moving onto Your Worship's next question, does 83.1(10)(a) to (f) of the Motor Vehicle Act provide that itemization is necessary to establish facts captured and encoded? Again, I'm not quite sure I understand your question, but the section --

THE COURT: This sort of evolves from the previous question. Does that constitute the necessary itemization that if the first question were to apply, then would section 83.1(10)(a) to (f) then provide that necessary detail or specificity in the legislation to support the items that are included in the certificate evidence.

So I believe your answer to the previous question more or less negates having to answer this one.

MS. NELSON: Yes. Although noting that it is -- there are specific things that are set out in (a) to (f) that do have to be itemized, and they are itemized in the forms. In any event, that section is permissive, says "may", it's not mandatory.

THE COURT: Similar to the section with regards to whether or not the captured image is required. I believe that's covered also by permissive may which --

MS. NELSON: Yes.

THE COURT: -- provides the basis for the Crown's argument that the photo or the captured image, shall we call it, is not required as evidence that the certificate may stand in its stead.

MS. NELSON: That's correct. To conclude, simply, first of all, there's no evidence to the contrary in this case. There was nothing raised by the defendant, either on his direct examination or cross-examination of the officer to suggest that there's any evidence to the contrary. In fact, he admitted that he was speeding.

The issue in this case, in my submission, is not with respect to theories and legislative intent. The issue is was this vehicle speeding on the date and time in question. The admission by the defendant was yes, he was speeding. He was sorry about it. He hadn't been caught before, but he admitted that, yes, he was speeding.

In my submission, simply on that admission alone, you must convict. And if Your Worship is not able to convict on that, you must convict on the basis that there's been no evidence to the contrary provided by the defendant. Those are the Crown's submissions.

THE COURT: Thank you. Now, my notes from July the 4th, the cross-examination of Mr. Ianakiev. Now, I've got here that you asked him were you speeding, and his response was 'maybe', and 'can't recall'. Are your notes more detailed on that? I did not order a transcript.

MS. NELSON: I didn't either. The note I have is that he agreed that he was speeding in the zone at that time. In any event, if he can't recall, then he's not able to say for certain that he was not, and again, there's no evidence to the contrary.

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THE COURT: I'm dealing here with violation ticket SA00844143 which charges that Constantine Ivan Ianakiev was alleged to have been speeding on the 7th day of January 1997 at 9:29 in the a.m., contrary to section 152(2) of the Motor Vehicle Act as it was. And this evidence was gathered by means of a speed monitoring device, which is defined and has been given approval by way of legislation, and pursuant to section 76.1(2), as it was, of the Motor Vehicle Act, Mr. Ianakiev, as the registered owner, is liable for the commission of the offence which is speed in playground zone.

Speed in a playground zone, which is now section 147(2) of the Motor Vehicle Act states that:

A person driving a vehicle on a highway must drive the vehicle at a rate of speed not exceeding 30 kilometres per hour, when approaching or passing, between dawn and dusk, a public playground for children where signs are displayed stating a speed limit of 30 kilometres per hour, or on which the numbers 30 are prominently shown.
 
Now, section 147 of the Motor Vehicle Act contains two speeding provisions which have additional essential elements when compared with the speeding regulations found in section 146, which generally, at most, require proof of signs being in place. For example, section 147(1) which covers school zones, has a further requirement that the Crown must establish that the hours at which the offence occurred were between 8:00 a.m. and 5:00 p.m., and also that it was on a day school is regularly held.

With section 147(2) which is the playground zone, the Crown must, in addition to establishing the rate of speed and the fact that signs were in place, also establish that the offence occurred between dawn and dusk at a public playground for children.

There have been no submissions in this case with regards to the term "between dawn and dusk", however, the evidence submitted by way of certificate from the Crown, which is the Certificate of Enforcement Officer Photographic Evidence (Receding From Speed Monitoring Device) -- I'm sorry, my error. I should be referring to Certificate of Enforcement Officer Qualified Operator, which is completed by the enforcement officer who monitors the operation of the photo radar camera at the site.

And his evidence states that on the date in question, the 7th day of January 1997, between the hours of 0914 and 1018, being between dawn and dusk. It is the Crown's position that that statement in itself establishes the essential element that the offence occurred between dawn and dusk. There was no evidence in this case presented by Mr. Ianakiev that he disagreed with that statement or would provide evidence to the contrary that it was not between dawn and dusk.

The issue which arose was related to the Certificate of Enforcement Officer Photographic Evidence (Receding From Speed Monitoring Device). In this certificate, the enforcement officer certifies that, in this case, Michael Grobman, G-r-o-b-m-a-n, certifies that he has viewed the image attached as part of this certificate, and then proceeds to decode the data line which is found along the bottom edge of the photograph, and also to state that he has determined that the photographed motor vehicle bears the rear licence plate number of [DELETED].

The issue that arose with regards to this photograph is the relative darkness. In fact, all that is distinguishable in this photograph are the rear doors and one rear tire and part of the muffler system of this vehicle which is receding from the speed monitoring device.

Under cross-examination, Enforcement Officer Steinwand gave evidence with regards to the darkness of the photograph which incidentally provided the basis for this court to grant leave for that officer to be required to attend for cross-examination purposes. And which I believe the Crown has also admitted in their submissions is a legitimate basis for requiring an officer to attend. Mr. Steinwand stated that it was his belief that given the time of year and weather conditions, it is possible that it was fairly dark, and subsequently he would be required to use a flash which he said may account for the relative darkness of the photograph outside of the vehicle. And he also made reference to a development process of which there is no evidence before the court, whereby a process is applied that allows the contrast to be adjusted to a point that a licence plate can be read.

The Crown has made a number of submissions today with regards to whether or not the vehicle image which is attached as part of the Certificate of Enforcement Officer Photographic Evidence constitutes evidence in and of itself. And it's the Crown's position that it does not constitute evidence in and of itself. That the information contained on page 1, as signed by the enforcement officer, is the evidence upon which the Crown relies.

The Crown also submits that the photograph on the vehicle image page cannot constitute evidence to the contrary. And in any event, there has been no evidence introduced, either by cross-examination or by Mr. Ianakiev, to show that he was not speeding. In this case, the data line at the bottom of the captured image shows a reading of 46. The speed monitoring device has a presumption of accuracy, in terms of the ability to simultaneously measure and record the speed of a vehicle. And there has been evidence introduced by way of certificate that the appropriate signs are in place, and that this vehicle was photographed in the vicinity of a playground designated for children.

The outstanding issue then is whether or not it is appropriate for the trier of fact to take a view of the contents of the vehicle image page, and also, in essence, to take issue with the admissibility of the photograph, based on the statement of the enforcement officer, that it's his belief that this photograph may have been altered.

The Crown cites two recent cases. One, a decision of Madam Justice Levine of the B.C. Supreme Court, in the matter of R v Guinn, which the Crown contends supports the position that the photograph or the captured image cannot in and of itself be evidence, in addition to the finding with which this trier of fact is in agreement with, that the certificate evidence, whether or not it contains a vehicle image attached, can be ruled inadmissible. And clearly, this cannot happen as pointed out in R v Guinn, and in more detail in the Supreme Court of Canada case of R v Crosthwait, where a certificate meets all of the legislative pre-conditions established, then it must be admitted into evidence.

The other case the Crown refers to is a matter which was decided at the Traffic Court level, before Madam Justice of the Peace Morrison, called R v Hillcrest Plumbing and Heating, wherein she ruled that it was not for the trier of fact to take a view or any judicial notice of the actual content of the captured image. In neither R v Guinn nor the case of Hillcrest Plumbing and Heating, has there been any reference to the Supreme Court of Canada decision in R v Nikolovski. This recent decision sets out the rules of admissibility of photographic evidence. Although the case in itself primarily dealt with identification arising from videotape evidence, it was the court's position that there can be no distinction in terms of admissibility between a still photograph and a videotape.

So although the legislative sanctions set out in the Motor Vehicle Act, where the gathering of evidence by way of an approved device, that is the speed monitoring device, and the further legislative sanction for the admission of that evidence by way of certificate, which provides that the facts contained therein are to be considered proof in the absence of any evidence to the contrary. The issue of whether or not a trier of fact can take a view of the photo or captured image, I believe should be looked at in light of that decision.

I believe that I've correctly interpreted the submission of the Crown which states that the photo may be considered by the trier of fact, in terms of determining whether or not to grant leave of the court to call one or both officers for the purposes of providing evidence by way of cross-examination. Which I feel to some extent supports my contention that the captured image is in and of itself evidence. So while admissibility may not be in issue, the rules which govern admissibility may affect the presumption of accuracy attached to that certificate.

In the case of R v Nikolovski, it is set out in section 8 which is titled "The Summary of the Positions as to the First Issue (The Use That Can Be Made of Photographs or Videotape)" paragraph 28.

Once it has been established that a videotape has not been altered or changed, and that it depicts the scene of a crime, then it becomes admissible and relevant evidence. It can and should be used by a trier of fact in determining whether a crime has been committed and whether the accused before the court committed the crime. It may provide such strong and convincing evidence that of itself it will demonstrate clearly either the innocence or guilt of the accused.
 
And this quote is keeping in mind -- again, the quote at page 414 by Cory, J. that "in my view there cannot be any distinction between a still photograph and a videotape."

The next rule outlined in R v Nikolovski, at paragraph 29, and these are found between pages 416 and 417, is that:

The weight to be accorded the evidence can be assessed from a viewing of the videotape. The degree of clarity and quality of the tape... will go towards establishing the weight which a trier of fact may properly place upon the evidence.
 
Paragraph 30:
Although triers of fact are entitled to reach a conclusion as to identification based solely on videotape evidence, they must use care in doing so...

In order to convict on the basis of videotape alone, they must be satisfied beyond a reasonable doubt that it identifies the accused.
 

Paragraph 31:
The jury or trial judge sitting alone must be able to review the videotape during their deliberations.
 
And paragraph 32, the latter part of that paragraph:
It would be helpful if after reviewing the tape, the trial judge indicated that he or she was impressed with its clarity and quality, to the extent that a finding of identity could be based upon it. This courtesy would permit the Crown or particularly defence counsel to call, for example, expert evidence as to the quality of the tape.
 
Further comments on the admissibility of photographic evidence can also be found in the Supreme Court decision of R v Leaney, at pages 274 to 277.

The Crown in this matter wishes to rely solely on certificates, and the information contained in the certificates, excluding the captured image found on the image vehicle page.

There is some evidence in cross-examination that a special developing process was applied to this photograph, which in view of Nikolovski would raise an admissibility issue and require the Crown to establish that the photograph is still an accurate representation of the facts in question. And also that the process may be a generally accepted type of development, that does not constitute a tampering or alteration of the image, only a variation in the development process.

I don't believe that there has been enough evidence brought before me to carry this particular issue any further. And on the secondary issue, there's no evidence to the contrary that the vehicle was not speeding, that it was not between the hours of dawn and dusk, and that it was not at a playground used by children. And accordingly, I will enter a conviction against Mr. Ianakiev.

I will, however, make a ruling that it is my opinion that the captured image is evidence in and of itself until such time as the rules laid out in R v Nikolovski can be distinguished vis-a-vis case law which the Crown has relied on to date, which is generally rooted in breathalyzer prosecutions and dealing with proceeding by way of certificate of evidence. And I will distinguish until such time the case of R v Hillcrest Plumbing and Heating, and also R v Guinn.

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THE COURT: The fine assessed against Mr. Ianakiev will be the prescribed fine of $100, and time to pay will be September 30th 1997.

MS. NELSON: Your Worship, the defendant indicated that he did have some financial considerations. Perhaps Your Worship should extend the time to pay in order that (a) he get notice that the fine has been levied, and to give him time to pay that.

THE COURT: The fine will be set at $100. In consideration of Mr. Ianakiev's financial circumstances, since we are -- time to pay may necessarily approach the holiday season, towards the end of the year, then perhaps I will give extended time to pay in this case to January the 30th of 1997 (sic). This will also allow for notification of Mr. Ianakiev by mail.

A transcript will be ordered and will be mailed to Mr. Ianakiev to advise him of the reasons for judgment.

(PROCEEDINGS CONCLUDED)  
[signed]
G. Hayes, J.P.

Rev: 1998.09.29