R. v. Salehi 

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Appearing for the Crown: S. Lakshaman
Appearing for the Defence: R. Salehi
Date of Hearings: July 18, 1997 and August 28, 1997
All Reasons given: August 28, 1997

[1.] The defendant, Julieta Parast Salehi, was charged pursuant to: s. 76.1(2) [now 83.1(2)] of the Motor Vehicle Act R.S.B.C. 1979, c. 288 as the owner of the vehicle bearing British Columbia licence number KEE 444 for speeding in playground zone which is contrary to s. 152(2) [now 147(2)] 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 evidence pursuant to s.76(2) [should be 76.1(2), now 83.1(2)] of the Motor Vehicle Act. This certificate appears in Schedule A of the Motor Vehicle Act Regulations, B.C. Reg. 26/55. On this certificate, an Enforcement Officer has stated that on January 06, 1997 at 1613 hours at an unique deployment site, a vehicle bearing license number KEE 444 was recorded travelling at the speed of 55 kilometres 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 C161 and on a photograph frame number 024. The certificate also contains number 130 reflecting the identification number of the qualified operator. The certificate was signed by an Enforcement Officer of the Integrated Traffic Camera Unit. Attached to this certificate was the vehicle image and data line as recorded by the prescribed speed monitoring device.

4. Certificate of Enforcement Officer: Qualified Operator. Motor Vehicle Act: Section 151(1) [should be 152(2), now 147(2)]), was entered by the Crown as evidence pursuant to section 76(2) [should be 76.1(2), now 83.1(2)] of the Motor Vehicle Act. On this certificate, the Enforcement Officer, whose number appears as the identification number of the qualified operator on the data line underneath the vehicle image, has stated that on January 06, 1997 between 1600 and 1645 hours, the said officer was operating a prescribed speed monitoring device at an unique deployrnent site in the 2000 block of Victoria Drive in Vancouver, B.C. This site bore a unique deployrnent code number 110200. The speed of the said vehicle was measured and recorded on a photograph while it travelled 55 km/hr at that unique deployment site.

5. This particular Enforcement Officer certified that on the day and time in question at this unique location, the said prescribed device was tested in accordance with the manufacturer's specifications and it was in proper working condition for accurately and simultaneously measuring and recording the speed of vehicles in its range. He also certified that this unique location was within the boundaries of a playground zone.

6. Certificate Number 3, Vehicle Ownership: Licensing Information was entered by the Crown pursuant to s. 75 [now 82] of the Motor Vehicle Act. This certificate contains an extract from records kept by the Superintendent of Motor Vehicles regarding the licensing information for the vehicle bearing B.C. licence number KEE 444. This certificate confirms that on January 06, 1997, Julieta Parast Salehi was the owner of the vehicle.

     Mr. Parast Salehi was the driver of the vehicle. He acted as agent for his wife. In his evidence, he admits that he was going approximately 55 km/hr in the locale described in the ticket at 4:l3 pm on the date in question. His argument revolves around whether or not at this time, on this date did he fit within the time period of dawn to dusk which is a necessary element of the offence of speeding in a playground zone. Critical to this discussion is the meaning of dusk within the Motor Vehicle Act and whether or not 4:13 on an early January afternoon in the City of Vancouver fits within the meaning of dusk.

     The defendant tendered into evidence what I will call a "sunset calendar". By that, I mean a chart produced by the Seventh Day Adventist Church, which indicates sunset for every Friday in 1997 for 17 different cities. Strict observance of the Saturday Sabbath is a critical part of the Seventh Day Adventist tradition. The defendant is a member of the Seventh Day Adventist Church. I find this piece of evidence totally credible and trustworthy.

     For the City of Vancouver, the calendar states that on January 3, 1997, sunset was at 4:27. On January 10, 1997, sunset was at 4:37. I accept the suggestion that one can extrapolate from this calendar and I determine that sunset on January 6, 1997 was between 4:27 and 4:37 in the afternoon. The alleged offence took place at 4:13 in the afternoon.

     Now, what is the meaning of dusk? To the best of my knowledge, only one reported case has grappled with the issue. In the Ontario Court of Appeal, in the case of R. v. Costello [1932] O.R. 213, Mr. Justice Hodgins (j.A.) held in an orbiter [obiter] statement that:

While we have not to decide the question so fully argued before us, namely, whether it was "after dusk" when the collision occurred, it may be useful to quote some definitions, for what they are worth, in case the point arises again:
Dawn is usually defined as the time when daylight first appears in the morning sky. Morning twilight is the interval of time between dawn and sunrise. Evening twilight is the interval between sunset and dusk; dusk being defined as the last appearance of daylight in the evening sky.

The illumination of the sky during twilight is due to the rays of the sun that strike the upper layers of the earth's atmosphere; the duration of twilight is hence due to the rate at which the sun sinks below the horizon and also to the condition of the atmosphere.

It would, however, be quite impossible to predict or to calculate the moment of dusk or dawn defined as above. Hence astronomers use ordinarily an arbitrary definition, and define astronomical twilight as to time between sunset or sunrise and the moment when the sun's centre is eighteen degrees below the horizon. At dawn or dusk as thus defined, however, it may be and usually is too dark to carry on ordinary work, as, for example, to drive an automobile without lights." (Dr. C.C. Smith, of the Dominion Observatory, Ottawa).

Murray's New English Dictionary: The darker stage of twilight before it is quite dark at night.

Century Dictionary: Partial darkness; an obscuring of light; a state between light and dark.
 

     What is clear in each definition is that dusk occurs after sunset. From the evidence accepted by the court, sunset occurred between 4.27 and 4.37 in the afternoon. The time of the offence was 4.13. Sunset had not occurred. Neither, obviously, had dusk. Hence, the court determines that at the time of the offence the defendant's vehicle was travelling at 55 km/hr in a playground zone limited to 30 km/hr. The defendant is convicted of s. 152(2) [now 147(2)] of the Motor Vehicle Act.
[signed]
E. Turley
Sitting Justice of the Peace
December 16, 1997.

Rev: 1998.09.29