R. v. Rush

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Jenny Machek: Counsel for the Crown
Clarke Burnett: Counsel for the Defence

[1] The defendant is charged, as the registered owner of a motor vehicle, with speeding against highway sign pursuant to the Motor Vehicle Act, R.S.B.C. 1996, 318, s. 146(3) and s. 83.1(2); and later being the photoradar provision. The defence submitted that the qualified operator’s certificate and viva voce (oral) evidence did not prove use of the prescribed speed-monitoring device.

Evidence:

[2] The standard certificates of the Enforcement Officer Vehicle Image Evidence, the Enforcement Officer Qualified Operator and Vehicle Ownership ("certificates"), were entered into evidence by Crown with consent of the defendant.

[3] The evidence on the "certificates" revealed that on January 23, 1998, a vehicle bearing British Columbia license plate DXN 843 was captured, on photoradar, going 73 km/hr at 18:51:04 hours on Highway 33 southbound 800 block at or near Kelowna, B.C. The speed limit there was governed by a visible sign indicating the limit to be 60 km/hr. The officer operating the device, Constable R.F. Gardner, certified he was qualified to and was operating an Autopatrol® (Speed Camera: Model # PR 100), which he found to be working properly between 18:46 and 20:17 hours on January 23, 1998. The motor vehicle bearing licence plate DNX 843 was owned by David Michael Rush on January 23, 1998.

[4] At trial the qualified operator Constable R.F. Gardner testified that there is only one type of device used in British Columbia, introducing photographs of the equipment used on the date in question. He described the device, commonly called "PR100", shown in the photos as being comprised of four separate components:

1. lap top computer;
2. transceiver unit;
3. camera; and
4. film canister

He testified about the components as follows:

[5] The lap top computer is the "foreman" which coordinates the components. It is not an American Traffic Systems (ATS) product, but comes with the device from ATS. The lap top computer in use is believed by Constable Gardner to be a Toshiba model. It usually remains in the van but can be removed.

[6] The transceiver is the central component, and has been upgraded with new software once since the device began to be used in British Columbia. This software update eliminated the need to check the calibration of the unit with a tuning fork. The photographs show, and viva voce evidence of Constable Gardner confirms, that there is a plate an the rear of the transceiver which says:

Autopatrol PR-100 Speed Camera System
MODEL PR-100NZ
FCC ID: KXRPR-100
IC ID: CANADA 2158 8315
Serial No. PR100R0100
Manufactured in the USA by American Traffic Systems, Inc.

[7] The camera sits on top of the transceiver recording the photograph and printing the data. There is a plate on the back of it which says:

Model TC-1000 TraffiCamÔ
Serial No. PR100C0251
Manufactured in the USA
By American Traffic Systems, Inc.

[8] The film canister fits on to the back of the camera. It too has a separate label which Constable Gardner testified read "Model #TC 1000 M". No photo was provided.

[9] There are also a monitor and VCR, which are not described as part of the device and have an independent power source. The officers are provided with a separate lap top computer to generate their certificates.

[10] Constable Gardner testified he was trained on "basically" the same unit as photographed with the exception being the updated software. The entire system of four components is commonly called "the PR100" and is the "AutoPatrol Speed Camera System". Nowhere does the designation "AutoPatrol® (Speed Camera: Model # PR 100)" nor "Model #PR100" appear on any of the components, only Model PR-100 NZ, which appears on the transceiver.

Legislation:

Motor Vehicle Act, RSBC 1996, c. 318

s. 83.1
(2) The owner of a motor vehicle is liable for the contravention of section 140, 146 (1), (3), (5) or (7) 147 or 148(1) IF evidence of the contravention was gathered through the use of a prescribed speed-monitoring device. (emphasis added)

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

Motor Vehicle Act Regulations, BC Reg. 26/58 us amended by BC Reg. 185/95:

s. 41.01
For the purpose of section 83(1)(8) of the Act, the AutoPatrol® (Speed Camera: Model# PR 100) is prescribed.

Issues:

[11] Ms. Machek, on behalf of the Crown, argued that all components together comprised the AutoPatrol Speed Camera System, relying on the legislated authority to prescribe a "speed monitoring device" (s. 83.1(8) Motor Vehicle Act) and submitted the system as photographed fit the definition contained in s. 41.01 of the Regulations; there was no requirement that the officers use any one particular part and any discrepancy between the wording in the regulation and the officers certificate, as found in R. v. B. & L. Security Patrol (1981) Ltd., B.C. Provincial Court No. SC92448148, Kamloops Registry, 7 January 1999, was eliminated by the officer’s viva voce evidence.

[12] I agree with the Defendant's argument as advanced by Mr. Burnett. The regulation is precise. In my opinion it prescribes the use of speed camera Model #PR100, manufactured as AutoPatrol®.

[13] Constable Gardner's testimony and the photos were of great assistance to me in deciding this issue and gaining an improved understanding of the device and its function, but it increased my doubt which was first raised in R. v. B. & L. Security Patrol (1981) Ltd. (supra). In that case it was the discrepancy between the viva voce testimony and the certificate which caused dismissal, not the pivotal issue that the unit being used comply with the regulation.

Statutory Interpretation

[14] I find the meaning of s. 41.01 of the Motor Vehicle Act Regulations is clear. With the use of "Speed Camera Model #: PR 100" in parenthesis, it is essential the AutoPatrol® equipment being used must include a camera, which is model PR 100. Any other interpretation defies logic and the plain meaning rule of statutory interpretation.

Decision:

[15] Whether or not the equipment used was the "prescribed device" is a matter for the court to decide. The evidence before the court, both viva voce and certificate, is that the camera used was Model # TC 1000. I am unable to find that the equipment used in this case is the instrument prescribed in Motor Vehicle Act Regulation s. 41.01 and the charge is dismissed.

[signed]
Sitting Justice of the Peace
Her Worship J.E. Hughes, J.P.
 

Rev: 1999.02.25