R. v. Paruk

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Counsel for the Appellant: Trevor Tozer
For the Respondent: Glen Paruk In Person

Place and Date of Hearing:
Vancouver, British Columbia
October 1, 1999

[1] Around June 20, 1997, the respondent received a photograph of his car in the mail. Along with the photograph, he received a Violation Ticket alleging a speeding infraction on Marine Way, Burnaby, B.C. on May 25, 1997. The Crown relied upon evidence of what is commonly referred to as "photo radar" to establish that the respondent was speeding on the day and at the time in question.

[2] The respondent was acquitted on March 6, 1999 by Sitting Justice of the Peace Aasen in traffic court.

[3] The Crown appeals the acquittal of the respondent on a charge of speeding contrary to sections 146(7) and 83.1(2) of the Motor Vehicle Act. [R.S.B.C. 1996, c. 318].

[4] At issue is whether the Crown can rely on the Certificates of the Enforcement Officer as evidence, and, if not, whether any flaw in the certificate evidence was met by the evidence of Mr. Liddicoat, an expert in the field of photo radar.

[5] The Crown states the issues as follows:

1. Did the learned Justice of the Peace err in ruling that there is an ambiguity between the device prescribed In the Motor Vehicle Act Regulations and the device used in this case?
2. Did the learned Justice of the Peace err in ruling that if there was an ambiguity between the device prescribed in the Motor Vehicle Act Regulations and the device used in this case, that it was not resolved by viva voce evidence?

[6] It is necessary to review the background evidence describing what is commonly referred to as photo radar. Section references are to the sections in force on May 25, 1997. Section 83.1(1) says that for the purpose of this section:

a "speed monitoring device" means a speed monitoring device prescribed under subsection (8) that is capable of photographing or capturing the image of a motor vehicle while accurately and simultaneously measuring and recording its speed. [Emphasis added].

[7] Section 83.1(8) states:

The Lieutenant-Governor in Council may prescribe a speed monitoring device for the purpose of subsection (2).

[8] Section 83.1(2) says:

(2) The owner of a motor vehicle is liable for the contravention of section 140, 146(1), (3), (5), or (7), 147 or 148 if evidence of the contravention was gathered through the use of a prescribed speed monitoring device. [Emphasis added].

[9] The Motor Vehicle Act Regulations, B.C. Reg. 26/58 state:

For the purpose of section 76.1(8) of the Act, the AutoPatrol ® (Speed Camera: Model # PR 100) is prescribed.

[10] The Motor Vehicle Act permits proof of an offence of speeding by a completed certificate of an enforcement officer. Section 83.2(3) states that the certificate is evidence of the facts stated in the certificate.

[11] Section 83.2(4) permits the attendance of the enforcement officer for the purpose of cross-examination with leave of the court.

[12] In some sections of the Motor Vehicle Act where reliance is on certificate evidence, it states that the certificate is evidence of the facts therein, in the absence of evidence to the contrary. This section does not contain this limitation. However, section 24 of the Interpretation Act R.S.B.C. 1996, c. 238 says:

If an enactment provides that a document is evidence or proof of a fact, unless the context indicates that the document is conclusive evidence, the document is admissible in evidence in any proceeding, and the fact is deemed to be established in the absence of any evidence to the contrary.

[13] In R. v. McCormack [1999] B.C.J. No. 814, sitting Justice of the Peace Hayes set out the penalty an accused faces if convicted of speeding, at paragraph 9:

In the event that a conviction is entered, the "ticketed amount" is imposed, with time to pay granted if necessary. No penalty points are assessed to impact the owners insurance rates and no record of conviction is entered on the owner’s driving record. Failure to pay the fine may ultimately result in the loss of driving privileges through inability to renew one’s driver’s license (see s. 26, M.V.A.). The Court may not impose a prohibition for a conviction under s. 83 or s. 83.1 (see s. 98(3), M.V.A.) There is no possibility of incarceration upon conviction.

[14] I have no reason not to accept this statement as correct.

[15] At trial, the Crown filed the certificates of an Enforcement Officer Qualified Operator, the Certificate of Enforcement Officer Photographic Evidence (Receding from Speed Monitoring Device) and a Certificate of Proof of Vehicle Ownership.

[16] In this appeal, the only issue is The Certificate of an Enforcement Officer Qualified Operator. The certificate states in a):

on 1997-05-25, between 07:50 hours and 13:50 hours, I operated in accordance with the manufacturer’s specifications a(n) AutoPatrol® (Speed Camera: Model # PR 100), (the "Device") a prescribed speed monitoring device which photographed motor vehicles while accurately and simultaneously measuring and recording their speed;

[17] Prior to the trial in this matter it became apparent that there was an issue with respect to the actual equipment used to measure vehicular speed and photograph vehicles. As a result, the Crown did not rely solely on the certificate evidence. It called Ronald Liddicoat and he testified as an expert in the operation of the AutoPatrol Speed Camera System.

[18] According to Mr. Liddicoat, the speed monitoring device used has three key components referred to as the Speed Camera System. The camera, the film magazine and the base transceiver. The base transceiver is the radar component. The manuals referred to by Mr. Liddicoat all refer the AutoPatrol Speed Camera System.

[19] Mr. Liddicoat also testified that he had been told that there is only one system of speed cameras. The respondent’s position is that the Justice of the Peace should not have relied on this evidence as it was hearsay. He submitted that this evidence is not properly part of the expert opinion. Mr. Liddicoat is the services manager in charge of repairing the speed camera system. His expertise, the respondent argues, goes no further. This evidence is one of weight for the trier of fact. I will return to this point later in the reasons.

[20] The other components used in the process of assessing speed are a laptop computer, a television monitor, a video cassette recorder and software. The laptop is used to start and initiate the system. In British Columbia the laptop remains connected during operation to maintain a back-up record of all the traffic patterns, photos and the data lines. Mr. Liddicoat acknowledged that the software is an important component of the system. The software has changed over the years. Mr. Liddicoat did not have any information that would identify the software. None of the last four items have been specifically prescribed in the regulations. None are in issue in this appeal, so I will say nothing further about these pieces of equipment.

[21] The evidence was that the base transceiver was labelled as follows:

AutoPatrol PR-100 Speed Camera System
MODEL PR-100NZ
FCC ID: KXRPR-100
IC ID: CANADA 2158 B315
Serial No. PR100R0101
Manufactured in the USA by American Traffic Systems

[22] FCC is the certification number given by the United States government. IC ID is the certification number by the Canadian government. The Canadian government (Industry Canada) certified Model PR-100NZ.

[23] The camera component is labelled as follows:

Model TC-1000 TraffiCam™
Serial No. PR100C0259
Manufactured in the USA
By American Traffic Systems, Inc.

[24] All of the cameras have serial numbers that start with PR100. The PR100 refers to the "System" and the "C" to camera.

[25] The film magazine is labelled as follows:

MODEL TC - 1000M Film Magazine
Serial No. PR100M0387
Manufactured in the USA
By American Traffic Systems Inc.

[26] Similarly, the serial numbers on the film magazines all begin with PR100M.

[27] The serial and model numbers on the components differ from that which is prescribed in the regulation.

[28] The Certificate of the Enforcement Officer correctly describes the speed monitoring device that is prescribed in the regulations, on its face, the certificate complies with the regulation. The question is whether the device that was in fact used is the device that was prescribed.

[29] The Justice of the Peace held that the certificate was ambiguous because it referred to Speed Camera Model # PR-100. However, the camera is not Model PR100, but TC - 1000. The entire system was the speed monitoring device, not just the camera. He held that, as far as he knew, the legislature was only approving the camera. He found that the ambiguity had to be resolved in favour of the accused.

[30] The reasons of the Justice of the Peace are brief, and I will reproduce them in their entirety:

Well, first of all, I think it goes without saying, and by simple math, that after my decision there will soon be a ratio of three to two. It is certainly the case that this Court — I agree with my sister in Kamloops and I agree with the defence.

In my view, this is exactly what Madam Justice Allan was getting at and looking at in terms of how things could be construed. For all I know, perhaps American Traffic Systems could only convince the government to prescribe the camera portion. We can put all kinds of interpretations.

I am going to point out here, and I think it is important to look at what the certificate says. The certificate says, "speed camera", and I am going to stress the word "camera". It doesn’t say "system", nor does the prescribed device, as prescribed in the Regulations. It does not say "system". It seems to me, and I am in agreement with the defence, Mr. Paruk, with respect to 83 and the definition provided in 83. Of course, and I agree with Mr. Henderson, that the speed-monitoring device is everything that is there. Why didn’t they simply set that out in the Regulation? They did not do it and they just mention the camera.

To further confuse the issue, and this is what I was getting at — if I look at the back of the camera, because we are dealing with "camera" here, I do not see anything that indicates PR-100 or even PR-100NZ. We are in a different ball game altogether here now. And maybe just the camera was what was approved. Maybe they had a reason for only approving the camera, I do not know. That is speculation but it is unimportant, as far as I am concerned. So we look here at serial number PR-l00. That is the serial number, it does not say model number. The model number of the camera, the "traffic cam which sort of connotes speed camera, if you will, is Model TC-l000, not PR-l00 or PR-l00NZ. The whole system is something different.

This is something that obviously has to be, in my view, straightened out by the Legislature. I think in all likelihood, and I do not think anybody here is at odds with this, that we are basically talking about the same system; 100 and l00NZ probably. But nonetheless, it is not clear. It is absolutely ambiguous, in my opinion, just for the reason pointed out. The camera is TC-l000. And then we have the PR-100, which is supposedly describing a system, and the Regulation says "speed camera".

On point, there is a great deal of ambiguity, in my opinion. Therefore, I do concur with my sister Hughes in Kamloops. I would also point out that, per the ruling of Madam Justice Allan, I feel obliged to dismiss the matter.

[31] The learned trial judge applied the reasoning of Justice of The Peace Hughes in R. v. B & L Security Patrol (1981) Ltd. (7 January 1999) Kamloops Registry, No SC02558148. In this case the learned Justice of the Peace found that the viva voce evidence of the operator contradicted the certificate. She then concluded that this amounted to an ambiguity in the legislation prescribing the traffic system. Following the decisions in R. v. Noble (1977), 37 C.C.C. (2d) 193 (S.C.C.) and R. v. Smith [1998] B.C.J. No. 302 (S.C. Allan J.), she dismissed the case because she was, "not satisfied that the unit being operated on the date and time in question, was in fact, the prescribed speed monitoring device".

[32] Certificates are used to prove many elements of offences in criminal and quasi-criminal offences. The use of certificate evidence is an exception to the hearsay rule. Permitting the Crown to prove a case by using certificates gives the Crown a distinct advantage over the accused. The use of certificates restricts the rights an accused has of cross-examination. It places an evidentiary burden on an accused to lead some "evidence to the contrary" that rebuts the presumption of proof of the offence granted to the Crown.

[33] In Regina v. Noble, supra, at 198, the Supreme Court of Canada held that such certificates "are to be strictly construed and where ambiguous, interpreted in favour of the accused".

[34] In R. v. Smith, Allan J. considered the admissibility of certificates in the context of a photo radar case. She reviewed the law with respect to the admission of certificates as evidence. She held that, "a penal section such as s. 83.2, which is clearly designed to circumvent the common law evidentiary rules and to assist the Crown in proving its case, should be strictly construed and, if ambiguous, interpreted in favour of the accused". The issue Allan J. was addressing was whether extrinsic proof was necessary to establish that the person signing the certificate was in fact an enforcement officer. She held that the certificate made by an enforcement officer providing evidence of the offence under s. 83.1(2) and signed by him or her, is admissible as prima facie evidence of the facts stated therein.

[35] In R. v. Alexis, R. v. Sloan (19 November 1999), Vancouver Registry CA025185/025203 (C.A.), the court reviewed the meaning of "ambiguity" in the context of certificates proving licence suspension in a charge of driving while prohibited. In these cases, an "i" appeared in the certificate instead of "1". Saunders J.A., speaking for the court, applied the definition from Odger’s Construction of Deeds and Statutes (5th ed.) at p. 76, "An ambiguity is defined as "an expression capable of more than one meaning". Further, Saunders J.A. held, at para. 16, that the "test is whether the accused may be misled or prejudiced".

[36] An error in a certificate does not necessarily render the certificate inadmissible. [R. v. Taylor (1986), 38 M.V.R. 263 (B.C.C.A.) at 283, R. v. St. Pierre, (1995), 96 C.C.C. (3d) 385 (S.C.C.]. In this case, the certificate is valid and regular on its face. It complies with the requirements of the legislation. The certificate was admitted into evidence in this case, without objection, and properly so. [R. v. Taylor, supra].

[37] Once the certificate is properly admitted, a presumption arises that the certificate stands for the truth of its contents. The purpose of the presumption is to assist the Crown in the proof of its case. Without the presumption, the Crown would be required to call viva voce evidence on every speeding ticket issued by photo radar. The nature of the photo radar operation results in many tickets issued whenever the camera is in operation. [R. v. St. Pierre, supra, at p. 406-407]

[38] The presumption may be rebutted by evidence to the contrary. If it is so rebutted, the Crown may still proceed to prove the case without the evidentiary short-cut. [R. v. St. Pierre, supra, at p. 397.]

[39] The certificate in issue here, is the certificate establishing the accuracy of the camera. The presumption is that the prescribed camera device was used and correctly recorded the speed of the respondent’s vehicle when it passed the device.

[40] The presumption granted to the Crown in the certificate may be rebutted as a result of evidence to the contrary.

[41] In R. v. Crosthwaite (1980), 52 C.C.C. (2d) 129 (S.C.C.), at p. 138, a drinking driving case, the court held that any evidence that would tend to invalidate the result of the tests as reported in the certificate in order to dispute the charge may be adduced. Evidence to the contrary must be sufficient to raise a reasonable doubt, not a mere possibility.

[42] The photo radar legislation faced a constitutional challenge in R. v. Tri-M Systems Inc. [1998] B.C.J. 2702. The challenge was brought on the basis that permitting the Crown to prove its case by certificate, deprived the accused of rights conveyed on it by s. 11(d) of the Charter of Rights and Freedoms.

[43] In upholding the constitutional validity of the section, Brenner J. held that the certificate evidence establishes, at most, a prima facie case. The evidentiary burden then shifts to the accused to raise a reasonable doubt.

[44] In R. v. Oliver (1981), 62 C.C.C. (2d) 97 (S.C.C.), the court reviewed the meaning of "evidence to the contrary" in the context of proof of a narcotic by means of a certificate. The Court held at p. 105:

"Evidence to the contrary" is any evidence which tends to put in doubt the probative value Parliament has legislatively conferred upon the statements contained in a s. 9 certificate."...

"Evidence to the contrary", as regards an analyst’s conclusions set out in a certificate, as those words are meant in s. 9, is any evidence upon which a trier of fact could as a matter of law rest a reasonable doubt as to that analyst’s conclusions had he testified as an expert witness in Court.

[45] If evidence to the contrary is led, either in the Crown’s case or by the accused, the Crown loses the presumption that the contents of the certificate is true. The Crown must then call viva voce evidence to establish the case against the accused.

[46] Evidence to the contrary is defined in the context of what is presumed in the contents of the certificate. What is at issue here is whether the presumption that the prescribed device was used can stand in the face of the evidence.

[47] In this case, the Crown called Mr. Liddicoat to describe the camera. The police officer was not called to testify. These facts differ from most of the photo radar cases I was referred to by counsel. In the other decisions, the officer was called at trial and testified that he used an approved speed monitoring device.

[48] In R. v. Brooks (1976), 36 C.R.N.S. 126 B.C.S.C., affirmed February 17, 1977 (B.C.C.A.), the court considered a factual circumstance, not all that different than the one at bar. In Brooks, the qualified technician testified that he used a Borkenstein Breathalyzer Model 900. Borkenstein breathalyzer was the approved instrument. The instrument was labelled: "Breathalyzer" Stephenson Corporation, Red Bank, New Jersey. The word "Borkenstein" did not appear on the instrument. The argument was that there was no evidence that the instrument was an approved instrument. The court held that the label did not rebut the technician’s evidence that he had used an approved instrument.

[49] Other decisions have made it clear that the presumption in the certificate will not be defeated by failing to include or including what was identified by the court as "surplussage". [R. v. Frankland (1978), 43 C.C.C. (2d) 365 (B.C.C.A.), R. v. Hickey [1988] B.C.J. 1008 (C.A.)].

[50] In this case the learned Justice of the Peace found that the evidence of different model numbers led to an ambiguity. He analyzed the problem on the basis that any ambiguity need be resolved in favour of the accused. He relied on the decision of Justice of the Peace Hughes. In this case, and R. v. B & L. Security Patrol, the court found that it was not satisfied that the camera used was the camera that had been prescribed. Aasen J.P. held that "we are basically talking about the same system; 100 and 100NZ, probably" [emphasis added]. Although the learned Justice of the Peace analyzed the problem in terms of "ambiguity", it appears that he was assessing whether the case was proved. Although the learned trial judge gave Mr. Liddicoat’s evidence some weight, he did not find the evidence of sufficient force to convict the respondent.

[51] The scope of a summary conviction appeal by the Crown is not limited with the same constraints as an appeal to the Court of Appeal which must be assessed solely on the basis of a question of law alone. However, the scope of appellate review in the context of the assessment of facts has some limits, as set out in R. v. Janzen (1978) 9 B.C.L.R. 208 (B.C.C.A.) at 210:

... it is my opinion that normally on a summary conviction appeal to a County Court Judge the judge may consider the facts as found by the trial judge when determining whether to allow the appeal or dismiss it, but only to the extent that the findings of fact or the evidence may cause him to conclude that the verdict was unreasonable or cannot be supported by the evidence; in other words, he does not have an unfettered discretion to make findings of fact regardless of the findings of fact made by the trial judge.

Reference may also be made to R. v. Antonelli (1978), 38 C.C.C. (2d) 206 (B.C.C.A.).

[52] The question is whether the evidence of the different model numbers is evidence to the contrary. The accused only has to raise a reasonable doubt with respect to the certificate in order to rebut the presumption. The starkly different description of model and serial numbers between the wording of the regulation and the actual device used may be evidence to the contrary rebutting the presumption that the prescribed device was used to assess the speed of the respondent’s vehicle. The learned Justice of the Peace found that the certificate was ambiguous. I infer from the whole of his reasons that he found that there was evidence to the contrary. The Crown thus lost the presumption found in the certificate.

[53] The next question is whether the viva voce evidence is sufficient to prove the case beyond a reasonable doubt. The short answer is that it is not. Once the presumption is lost, the officer was required to testify to the matters stated in the certificate. As noted, he did not.

[54] The evidence of Mr. Liddicoat was not sufficient to establish proof of the offence beyond a reasonable doubt. While a trier of fact might have found that the officer’s evidence was not rebutted by the discrepancy in labelling, Mr. Liddicoat could not offer the necessary evidence.

[55] The evidence that he did proffer to the effect that there is only one device, therefore the device used and the prescribed device are one and the same, is not helpful. Mr. Liddicoat was unsure whether there was only one device. He obtained his information, not as a result of any expertise in the field, but by telephoning someone in the United States. The Justice of the Peace did not find this evidence compelling, and I agree.

[56] Considering all of the evidence before the Justice of the Peace, I see no reason to interfere with this conclusion.

[57] The legislation was amended on May 6, 1999. It now reads:

41.01 For the purpose of prescribing a speed monitoring device under section 83.1 (8) of the Act, the AutoPatrol PR-100 Speed Camera System is prescribed, which consists of a) a radar base assembly: Model PR-100NZ,
b) a camera: Model TC-1000 TraffiCam™, and
c) a film magazine: TrafficCam™ TC 1000M35.

The effect of the amendment was not raised before me and, therefore, it has taken no part in my conclusion.

[58] In summary: the certificate of the enforcement officer is not ambiguous in and of itself. The certificate filed facially conforms with the requirements of the legislation. The certificate was properly admitted into evidence. The evidence of the various model and serial numbers of the separate components of the system differing from the model number found in the Regulation was evidence to the contrary that rebutted the presumption that a prescribed device was used when monitoring the speed of the respondent’s car. The viva voce evidence led by the Crown was insufficient to prove the offence beyond a reasonable doubt.

[59] The appeal by the Crown is therefore dismissed.

[signed]

 

Rev: 2000.01.07