R. v. B & L Security Patrol (1981) Ltd.
|NOTE: The following is copyright of the respective owner(s). SENSE does not assume any liability pertaining to the accuracy of the information presented. Readers are advised to independently verify information they intend to rely upon, and should obtain original copies if they intend to present the following case in court.||Complete and original transcripts are available for purchase from: Echo Services Ltd., 2804A 45th Avenue, Vernon, BC,
Phone: 250-260-3496, Fax: 250-260-3462
MS. MACHEK: Calling the matter of B & L Security patrol.
THE COURT: Who is speaking on behalf of the company?
MS. PERCIVAL: I am. For the record, J. Percival, P-E-R-C-I-V-A-L. I am counsel for Mr. Goodrich, who is the owner and operator of the B & L Patrol -- or the owner of the vehicle.
THE COURT: Thank you. And are you prepared to waive reading and enter a plea, or would you like me to formally arraign your client.
MS. PERCIVAL: No, Your Worship. We're prepared to waive the reading and enter a plea of not guilty.
THE COURT: Thank you. Fine, then, a not guilty plea is entered under Violation Ticket SC02558148 to the charge of speeding in a school zone, contrary to Section 147(1).
Are you calling any witnesses, Ms. Percival?
MS. PERCIVAL: Yes. I'm not sure -- as I understand, this matter was just adjourned, and I don’t know if my friend wishes to call her case first; then I'd be calling a witness. I don't know if the documents have been put into evidence. That's my understanding.
MS. MACHEK: They haven't.
MS. PERCIVAL: Then perhaps that should be done first.
THE COURT: No. I just saw that there was an extra person here, and so I was --
MS. PERCIVAL: I’m sorry. This is just an observer, Your Honour, but Mr. Ferris is actually being called as our witness.
THE COURT: Okay.
MS. PERCIVAL: This would be Constable Ferris. I'm content he remain in the courtroom. I don't have a problem if Your Worship doesn't.
THE COURT: Thank you. So just so I understand the process, you've subpoenaed Constable Ferris?
MS. PERCIVAL: Yes. That's correct. We're required, basically, in the circumstances, to do so if we want to get some more information. At the time the constable was subpoenaed, he was also asked to bring some documents with him, which we'll be using for purposes of our defence.
THE COURT: And you've had those documents provided to you.
MS. PERCIVAL: Well, one of them, I think, which is a deployment sheet, I think he'll be able to provide us with.
CONSTABLE FERRIS: Yeah. I have (indiscernible).
MS. PERCIVAL: Yeah. He has that material. I haven't actually talked with Constable Ferris in depth. I've talked to him over the phone, but I don't think there's a problem. We did go through what was required in the circumstances.
MS. MACHEK: What the Crown is proposing, then, is to put in the evidence by way of a certificate, and as Ms. Percival has stated, Corporal -- or rather, Constable Ferris will be her witness, really, for the --
THE COURT: It puts you in a position of being able to cross-examine him.
MS. MACHEK: That's correct. I'm going to give a brief introduction to the legislation, then, Your Worship
This is a prosecution pursuant to Section 83.1 of the Motor Vehicle Act, and that section contains what are known as the photo radar provisions. Section 83.1 of the Motor Vehicle Act makes the owner of a motor vehicle liable for violations of the Motor Vehicle Act and the Motor Vehicle Act Regulations and any by-laws enacted by a municipality.
The evidence of the offence must be gathered through the use of a prescribed speed monitoring device, and that prescribed speed monitoring device is set out in regulation 41.01 of the Regulations to the Motor Vehicle Act. It is described there as the Autopatrol® Speed Camera Model number PR 100.
One notable feature of the scheme is that since one is charged as the owner and not as the driver, if a guilty plea is recorded or a guilty finding or verdict recorded at the end of the day, the person named in the violation ticket does not receive demerit points.
This also means that the Crown is not required to prove who was driving at the time of the alleged offence. Rather, the Crown need only show to whom the vehicle that is alleged to have been offending was registered at the pertinent time.
Another notable feature is that the Crown puts in evidence by way of certificate, rather than having the officers attend court to give their evidence. The enabling sections are Section 82 and Section 83.2 of the Motor Vehicle Act, which allow the Crown to enter a certificate of vehicle ownership in a prescribed form, in addition to a certificate of a qualified operator and a certificate of vehicle image evidence, and those are entered as proof of the facts stated in each certificate. This means, in the Crown's submission, that the evidence in the certificates has the same weight as if the officer had given the evidence personally.
The use of certificate evidence is notable but not unique as in cases of driving with a breath alcohol amount over the legal limit. Evidence of the officer who administers the breathalyzer test is also put in by way of certificate, typically.
I have provided Mr. Goodrich on his first appearance with the copies of the certificates that the Crown intends to produce, and I'm going to show his counsel today the originals and allow her to make comparisons, starting with the Certificate of Enforcement Officer Vehicle Image Evidence. It's a two-page document. I'm going to ask that this two-page document be marked as an exhibit in these proceedings.
THE COURT: Thank you. Mark that as Exhibit number 1.EXHIBIT 1 - CERTIFICATE OF ENFORCEMENT OFFICER VEHICLE IMAGE EVIDENCEMS. MACHEK: And by way of explanation, this is the evidence of the individual who receives the photo image and interprets what is known as the data line on the bottom of the top image, which is found on the second page of this certificate. Typically, this individual has no part in the gathering of the evidence, but rather has an interpretive role. This is the evidence of a Lisa Borland, an enforcement officer within the meaning of the Offence Act, who states that for the purpose of providing evidence pursuant to Section 83.2(2) of the Motor Vehicle Act, she certifies that:a) the images on page 2 were gathered and recorded by a prescribed speed monitoring device;that:b) the bottom image on page 2 is an enlargement of the top image showing the licence plate area of the alleged offending motor vehicle;that:c) this alleged offending motor vehicle pictured in the images on page 2 bears the licence plate number 5656RW, issued in the jurisdiction of B.C.; andin Paragraph (d) she certifies that:"The data line on the top image on page 2 is data which was electronically and simultaneously recorded in accordance with Section 83.1(10) of the Motor Vehicle Act and shows in sequence from left to right:"and then she sets out a variety of pieces of information.
The Crown is relying on the entire certificate as evidence, but I'm going to simply highlight the pertinent parts here for our purposes. That is that the image -- the date the image was captured was the 98th year, 1st month, 26th day at 9:27:02.
A minus sign indicates that the vehicle was receding from the device.
Forty-one is the alleged offending motor vehicle's speed in kilometres per hour.
0C7 is the location site identification code, and 216 is the Operator Enforcement officer Identification Number. This officer, Lisa Borland, has signed and dated the certificate in accordance with the legislative requirements.
Next, the Crown tenders the Certificate of Enforcement Officer Qualified operator. I'll show Ms. Percival the original of that so that she may compare. By way of explanation, this is the evidence of the officer who actually gathers the evidence in the proceedings. and the Crown would ask that that be marked as an exhibit in this proceeding.
THE COURT: Thank you. Marked Exhibit 2.EXHIBIT 2 - CERTIFICATE OF ENFORCEMENT OFFICER QUALIFIED OPERATORMS. MACHEK: This is the evidence of Randy Ferris, an enforcement officer within the meaning of the Offence Act and a qualified operator of the prescribed speed monitoring device described in this certificate. For the purpose of providing evidence under Section 83.2(2) of the Motor Vehicle Act Mr. Ferris -- or Constable Ferris certifies that on the 26th of January, 1998, between 09:24 hours and 10:24 hours, he operated in accordance with manufacturer's specifications an Autopatrol® Speed Camera Model number PR 100, which he refers to hereinafter as the "device" -- a prescribed speed monitoring device which photographed motor vehicles while accurately and simultaneously measuring and recording their speed.
He certifies that he found the device to be working properly throughout that period of time, and that it monitored, photographed and recorded motor vehicles moving away from the device as the vehicles were driven on a highway, namely 3rd Avenue northbound in the 500 Block at or near Kamloops in the province of British Columbia. That location has a unique site identification code of 0C7.
I note that in terms of the time and date, those correspond with the evidence in Exhibit number 1. As well, I note that the device that is set out in the certificate is that which has been prescribed by the legislators at Regulation 41.01, namely, the Autopatrol® Speed Camera Model # PR 100.
I note that with respect to his evidence in paragraph c) and the direction of travel of the motor vehicles, that corresponds with the minus sign recorded on the data line on Page 1 of Exhibit number 1, and as well, the location matches up with that in the violation ticket. The unique site identification code also corresponds with the evidence in Exhibit number 1.
The officer goes on to explain that the device captures the image of each alleged offending motor vehicle in separate frames, and then goes on to explain what we've referred to as the data line.
In Paragraph e) the officer notes that a negative means that the vehicle whose speed is recorded on the data line was travelling away from the device.
In Paragraph f) the officer states that the location where the photographed motor vehicles were driving was in the vicinity of a school, and that during the hours of operation there were area -- pardon me, school area warning signs with regulatory thirty kilometre per hour tabs relating to that school displayed on the highway on which these motor vehicles were travelling. He certifies that the sign conformed to Motor Vehicle Act Regulations and established a maximum speed zone where the motor vehicles were photographed.
The officer further indicates in section – or rather Paragraph g) that the maximum speed limit at that location for motor vehicles approaching, passing or driving in the vicinity is to – was thirty kilometres per hour, and states in Paragraph h) that the date on which the device was operated was a day school was regularly held.
And this officer signed and dated the certificate in accordance with the legislative requirements and has given a film roll number of 0560, which corresponds with the evidence in Exhibit number 1 as well. The officer gives his unique -- rather, identification number, which matches up with the evidence in Exhibit 1.
And lastly, the Crown tenders the Vehicle Ownership Certificate, and I ask that this be marked as an exhibit.
THE COURT: Mark that Exhibit 3.EXHIBIT 3 - VEHICLE OWNERSHIP CERTIFICATEMS. MACHEK: And the Crown tenders this in order to show that Licence number 5656RW, which is, in fact, the licence number that is seen to be recorded in Exhibit number 1, that that was registered to B & L Security Patrol on the 26th of January, 1998, and I know that B & L Security Patrol is the individual or the corporation named in the Violation Ticket, and the date January 25th, l998, is the date that the image was captured and also the date on which the qualified operator advises he was gathering evidence.
That's the evidence for the Crown.
THE COURT: Thank you. Case for the defence
MS. PERCIVAL: Yes, Your Worship, at this time we call Mr. -- excuse me, Constable Randy Ferris to the stand.JAMES RAADOLPH FERRIS, a witness called on behalf of the Defence, being duly sworn, testifies as followsTHE COURT: Please state your name, spelling your last name for the record.
THE WITNESS: James Randolph Ferris. F-E-R-R-I-S.
THE COURT: Thank you
THE WITNESS: I'm presently employed with, uh, Royal Canadian Mounted police, uh, stationed at the photo radar unit at Kamloops, British Columbia.
EXAMINATION IN CHIEF BY MS. PERCIVAL:
Q Now, Constable Ferris, how long have you been with the R.C.M.P.?
A Since December 3rd, 1973.
Q And specifically, how long have you been doing photo radar deployment?
A Since the 1st of November, 1977.
THE COURT: Seventy-seven?
THE WITNESS: Seventy -- nine – '97, rather. Excuse me.
Q I was going to comment.
THE COURT: You would have been well ahead of your time, constable.
THE WITNESS; Well ahead of my time. Yes.
Q And, Constable Ferris, you were subpoenaed by my client to attend court today, and you were provided with conduct money to attend court today, as I understand it. Is that correct?
A Yes. I was.
Q And at the time you were subpoenaed, you were specifically asked to bring with you what's called a "deployment sheet" --
Q -- for the prescribed speed measuring device. Is that correct?
Q Okay, and do you have that deployment sheet with you?
A Yes. We have two, so I'm not quite sure which you're looking for.
Q Well, it would be the one that would have --
A I have a de- --
Q -- reference to --
A -- deployment summary sheet.
Q Okay. That's a summary sheet, and I take it, then, this would have all your shifts on one particular film roll?
A Yeah. My four-day shift and logbook.
Q So that it covers a period --
Q -- of -- I'm sorry, there's no dates on it.
Q 98:01:25 to 98:01:27.
Q So that would appear to be two -- well, three days altogether.
Q Okay, and just for the benefit of my friend, perhaps you could just give us a description of what this --
A What thi- --
Q -- describes
A What this, uh -- it does is it shows the locations I worked. the times I worked, and how many photos were taken.
Q So that would be something that you would have prepared shortly after --
A As I was doing, uh, each deployment. Yes.
Q Oh. As you did each deployment, you would just add on each day --
A Each --
Q -- where you were --
Q -- deployed, the period of time, etcetera.
Q Okay. So that just, I take it, would help you in preparing your certificates for various tickets. Is that correct?
A Uh, it's just done to -- for the supervisor to check what I've been doing, I guess, basically.
A When I actually did the deployment, I did the, uh, deployment register
A -- which is this document.
Q And so this particular deployment register -- all the handwriting, I take it, is in your own handwriting?
A Yes, it is.
Q And the signature here is your own signature?
A Yes, it is.
Q Okay, and then there appears to be a form whereby you have to tick off certain things in terms of the set-up of the Autopatrol® and then, of course, its computer operation.
A Yes, it is.
Q And then you also note traffic level and weather condition.
A Yeah. Those are my notes for the weather conditions of the day.
Q And it appears it's initialled in a different ink by yourself on the first notation. Ninety-eight oh one, and then it said, "Twenty" -- something, and then you've initialled over it in black ink.
A Yes. I -- when I went to our filing system and pulled it out today it was incorrectly dated the 25th.
Q And how did you know that on today's date that it was incorrectly dated?
A Well, the offence -- it was, uh, for the 26th -- the speeding was for the 26th. I checked with the deployment register. It was consecutively done on the 26th. It, uh, had to have been --
Q If I just might see your summary again, please? Thank you.
A -- an error there, and I also brought -- my, uh, daily log book indicates I worked on Third Avenue on the 26th as well, of January, not on the 25th as noted. I was working on the Coquihalla Highway previously.
Q So from reviewing other documentation that you obtained, you decided that you had made an error when you originally put down the 25th --
Q -- of January of 1998, and so duly changed the date on this document and initialled it --
A Yes, I did.
Q -- to the 26th from the 25th.
A Yes. I did that this morning.
Q And you also indicated there that you were using a vehicle that you described as van -- Vehicle unit 204. Is that correct?
A Yes, it is.
Q Okay, and do you recall how long you've been using that vehicle?
A As to -- in -- in what? I used it for that entire block of, uh, four days -- or three days.
Q Okay. no you recall whether there was any breakdowns on the date of the 26th of January, or would you be able -- unable to say at this point? Any breakdowns in the use of the equipment that day.
A There were none. I used it the entire day -- throughout the entire day.
Q And I take it you would have filled out some document indicating it there were some problem reported?
A Yes, I would. Actually, if there's any problems we just return it to, uh, our office and have it repaired or sent to Richmond for repair if it something to do with the photo radar system.
Q So, if I read your register correctly, this particular site, which I think you've designated as 0C7, the site of -- which is the subject of the ticket before the court today, is 0C7, location site identification code?
A Uh, I don't have anything --
Q I'm sorry.
A -- without my notes to --
Q Perhaps -- this would be -- Your Worship, this would be in reference to his certificate which is filed, I believe as Exhibit number 2.
A Zero Charlie Seven? Yes.
A I can read that for you. Yes.
Q I'm just trying to find it on your deployment summary sheet, if you'd help me, please.
A (Indiscernible) here.
Q Okay. So that would be .006, I think.
A No. Oh, pardon -- uh --
Q In terms of the deployment number, .006.
A No, zero zero se- -- that's zero zero five.
Q Zero zero five. Thank you, and you have -- well, you have what you called a photo count, and it indicates thirty photographs.
A Yes. That would have been thirty photographs taken at that, uh, location during the deployment.
Q Okay, and then on a previous deployment, which is described as Deployment number 004 there was no photos taken. I don't mean to do this to your because you don't have a document in front of you, but --
Q Okay. So it seems that there was -- of all the deployments you had in that three-day period, that was the one that ended up with the greatest number of pictures?
A Uh --
Q Presumably violations, I mean.
A Yes, it would.
Q This is what we're talking about.
Q Because you're only presumably taking what is alleged to be violations by the machine.
Q Okay. So you would have hit pay dirt that day, then.
A Well, the rest of them were actually out on the Coquihalla Highway in the wintertime, so --
Q Okay. Now, again, the intricate traffic camera unit deployment register is for the Autopatrol® -- and it has trademark in small letters – Speed Camera System, and you1re required to fill out this document. Is that correct?
A Yes, I am.
Q Okay, and then you're supposed to, of course, put any relevant facts as to the deployment of that vehicle at a particular site at a particular time. Is that fair to say?
A Yeah. I gue- - I imagine that basically it's -- it's so an error -- operators don't make errors while they're --
Q Okay. It might be kind of described as being similar to what's often called a breathalyzer checklist.
A Yes. Quite similar.
Q Okay and so it's merely an administrative document to ensure that if there's any question as to some problem later on the film, that you can go back to your deployment register and then indicate that there didn't seem to be any problem in the deployment of the camera.
A Well, it -- it's my notes for making up the, uh, Certificate of Enforcement Officer Qualified Operator.
Q Okay. Now, if I understand it, just basically going through the photo radar system, you pick a site that's already been checked out as to being appropriate for the use of the radar camera?
A Yes, I do.
Q And then you decide to position your camera correctly and set up your -- the radar, plus, of course, the computer unit.
Q And then you begin pictures at a certain time and stop at a certain time.
Q And when I say that, you re in position to record.
A I record whatever time I start and what time I stop. Yes.
Q Okay, and as I understand it, there's a video camera inside the vehicle?
A There's a video camera that is --
Q Monitor, I should say. Excuse me.
A Monitor that is there that is --
A -- connected to the camera.
Q Okay. Can you recall if it was on on that particular day?
A It would -- it would not have been on.
Q It wouldn't have been on.
Q Okay, and then as I understand it, once you have actually set up your deployment, you just remain inside the vehicle, doing what?
A Observing the traffic, usually.
Q You usually observe the traffic. This particular day, are you in a position to say whether you observed this particular vehicle or not.
A I cannot say I observed this particular vehicle. I spent quite a bit of the time I was there speaking to a lady who was, uh, some -- somewhat upset that we were parked there.
Q Oh. Okay. So you don't do any personal observations or do any sort of checks on the machine to see if it appears to be working. As far as you know, once you've set it up according to your instructions, and, obviously, from the operation instructions you've been trained in, you just let it run unless there appears to be some obvious problem.
A Unless I observe something that’s not correct. Yes.
Q And this particular day I think you described as being overcast?
A Uh, cloudy, overcast. Yes.
Q Okay, but you didn't seem to -- I gather you felt that the pictures would be clear enough for purposes of prosecution.
Q Okay, and did you notice if there was any particular problem with the camera in terms of it being able to discern -- let's put it this way the actual object that it was photographing?
A No. There didn't appear to be. I focused the camera for each deployment prior to -- with -- manually, so it --
Q So you focus it and then the camera --
A Look through the camera itself.
Q Okay, and now do you just let the camera run till it runs cut of film, or do you just decide at some point to end the deployment and pack up and go back to your detachment?
A Well, actually on this particular occasion I was picking up another photo radar person who was assigned to be with me that week, except he had a doctor's appointment, and I waited until he called and I shut down at, uh, 10:04 --
A Which would be when he called me that he was ready to go.
Q Okay. So you were deployed at that site, as I understand it, for a little over an hour.
A No. Actually only forty minutes.
Q Forty minutes, in fact. Under an hour.
A Under an hour.
MS. PERCIVAL: Okay. Your Worship, if I just might see -- because I only have a photocopy -- I think what's been described as I believe it would be Exhibit number 1 with the photograph attached to Ms. Borland's affidavit.
THE COURT: You get to approach.
MS. PERCIVAL: Thank you.
THE COURT: Watch out for cords. It's kind of like a minefield.
MS. PERCIVAL: Thank you very much.
Q And, of course, the photograph was taken in daylight. Is that correct?
A Yes. It would have been daylight at 9:00 a.m. Okay, and have you seen that photograph prior to me showing it to you today?
A No, I have not.
Q And as you indicated, you were not watching vehicles that were being photographed or anything of that nature -- I mean -- I should put it more specifically.
A Not --
Q I don't mean to mislead you.
A Not recording specifically.
Q Recording specifically.
Q And have you noticed in the past if there would be problems, perhaps with ghosting? Do you know what I mean by that term?
A Uh, a- -- as ghosting?
Q Yes. Ghosting, in the sense that sometimes you might record a wrong object. Anything of that na- -- have you ever mad a problem that way, operating the photo radar unit.
A Ghost -- ghost -- ghost readings would be getting readings where there were no vehicles there.
Q Yes. Readings perhaps from some object other than what appeared to be the speeding object. Do you know of any problems that way with your camera, or not?
Q Okay, and I think as you've indicated, you've been running it for approximately --
A Two and a half years.
Q -- two and a half years, but at the time of this incident, it would have been just over a year.
Q Now, the second item I've asked you to bring with you -- no, excuse me. The second aspect of the subpoena that I provided to you asked that you inspect the rear plate attached to this device, the photo radar camera, and specify the entire model number. Did you do that, sir?
A I, uh, didn't write it down, but I inspected it this morning, and it's a PRlOO Autopatrol® Speed Camera Model PR 100NZ.
Q NZ. So that is the number that's written down there, and --
A It's --
Q -- obviously you're giving us your absolute -- absolute observation.
A It is, yes.
Q So, this describes the PR 100, and is that a space NZ?
Q NZ is --
A PR100 -- Model dash PRlOONZ.
Q So it's PR 100 -- I'm sorry, dash NZ is it?
A No. Just NZ.
Q NZ -- so NZ seems to form part of the 100. It seems to be one continuous --
Q -- one zero zero NZ.
Q And then, I gather there's a space before it and it says PR. Is that right?
A I think PR100NZ is all consecutive --
A -- without any spaces.
Q Okay, and I take it, to your knowledge, that this is the same camera you were operating on the time -- at the time that this event occurred back on the 26th of January of '98.
A I have inspected several of them. They're all identical.
Q Okay. So that is the actual designation on the camera that was used when you did your deployment on the 26th of January, '98. Isn't that correct?
A I -- it's, uh, identical --
A So that's all I like, I never inspected it on that date so I have no idea what it said then, but it hasn't changed, to my knowledge.
Q Okay, and do you have any involvement in ordering up the Vehicle Ownership Certificate? Do you provide that to the Crown, or --
A No, I do not.
A My involvement is complete when I complete the, uh --
Q The form.
A -- Certificate of Qualified Operator.
Q The certificate. Okay. And just for, kind of, I guess, continuity, you obviously do your deployment, photographs are presumably taken of violators -- alleged violators, that's the point in any event, and then you at some point are asked to prepare these certificates.
A I prepare them in every incidence where a photograph is taken.
Q Okay. I guess what I'm getting at is does Ms. Borland do her certificate prior to you preparing yours?
Q Okay. You do it independent of Ms. Borland.
A I -- I do them, uh, prior -- they are turned in at the same time as the film is.
A I take the pictures, do the certificates, and turn them in together and they go --
A -- I believe independently to Richmond, but --
Q Okay, and at no time, as I understand it – and I'll be more specific. In this particular incidence1 there is no specific observations by you of this particular vehicle that’s the subject of the ticket.
A No. There are not.
Q And again, just to be clear, this camera you described is a photo radar camera with the Model number PRlOONZ, and is referred to as an Autopatrol® -- well it's a trademark name -- do you --
A They are built by American Traffic Systems Canada Limited, to my knowledge. I -- other than that I --
Q Okay. Well, I know you’ve been trained on the Autopatrol® to --
A Autopatrol® PRlOO.
Q One hundred, and that's what you've been advised, as I understand it. I mean, you don't have any personal knowledge of the camera other than its operation. I mean, you've not involved in its testing or in its --
A No, I'm not.
Q -- manufacture or anything of that nature.
A No, I'm not.
Q You've just been basically told that this is the device Use it for purposes of basically photo radar.
A Yes. That's identical to the device, uh, which I was trained on.
Q Okay. Then, as I understand it, according to this ticket and again going by your deployment register, it involved a van that's gone -- goes by the numbers 204.
A Yes, that -- the two indicates it's --
Q Written --
A -- works out of Kamloops, and, uh, four is the consecutive number of the van.
Q Yes. Because I understand there's five vans in Kamloops.
Q Sorry. Eight, okay. So this would be one of the eight, but at the time in question it was this particular van that you were using, and therefore the camera and the rest of the -- I guess the technology that was inside the van.
A Yes. The -- there -- the technology is part of the van.
Q Okay. And I take it you are also given certificates. As I understand it, these are certificates which are according to the specifications indicated by the Motor Vehicle Act. Is that correct? Then you fill in the blanks from specifics of, for example, the date that it occurred, the time that it occurred, and, in fact, the time in terms of between certain hours and certain hours, as well as the location that it occurred, and, of course, the alleged violation. Is that correct? This is all according to basically statutorily required
A It's -- it's a computer-generated document, on which I fill in the blanks.
Q Right. Okay.
A They've changed periodically since my --
Q And again just dealing with the -- excuse me here, Your Worship, this would be Exhibit 2, where it says, for example, "I, Randy Ferris," it seems to be all the dark -- the darkened, if you want to call it, parts of this particular certificate --
Q -- and underlined are the parts that you have filled in, and then the rest of this would be basically, as you indicated, the computer generated.
A Well, uh, with the exception of the Autopatrol® speed Camera Model PR100 –
Q Oh, okay. That's already in there.
A That's already on the –
A -- document. I do not adjust that.
Q Okay. Okay. So you never change anything on this document except when you fill in the stuff that's --
A I -- yeah.
Q Specific --
A The, uh -- the blank.
Q Specifying the alleged violation.
MS. PERCIVAL: I have no further questions.
THE COURT: Thank you. Questions from the Crown.
CROSS-EXAMTNATTON BY MS. MACHEK:
Q Yes, Constable Ferris, my friend asked you if there were any breakdowns on this particular day, which was the 2nd -- 26th, rather, of January, 1998, and you responded that, "There were not."
A There were no --
A -- uh, irregular -- any irregularities in the operation of the camera.
Q And you stated that if there was a problem, you would return the vehicle.
A Yes. It would be, uh --
Q And is there
A Withdrawn from service.
Q Thank you. Is there a standard procedure that you follow if there is a breakdown? So -- now, first of all I should clarify. When you answered her question as to breakdown that day, did you take it to mean a breakdown -- a mechanical failure of the vehicle or of the equipment or, what?
A Well, as I indicated, if it's the vehicle we repair the vehicle; it it's anything to do with the Autopatrol® Speed System, like, for example, the camera, then it's returned to Richmond for repair.
Q And what -- first of all, is there a standard procedure you follow with respect to the film roll that is in that camera on that day?
A Uh, well, quite, uh, normally the deployment – it -- if there would be a problem, uh, would be voided.
A In this case, it probably would have been the whole film.
Q And has that happened to you before?
Q Okay. And my friend asked you, and you answered, “Yes," to the question, “As far as you know, once set up, you let it run until there's an obvious problem." Do you recall her asking that question?
Q And how or have you ever discovered or seen what -- an obvious problem of any sort?
A Uh, well, on one occasion I was working in Williams Lake, and a city bus went by with a vehicle going in the opposite direction and it recorded a false, uh -- it recorded the speed of the total of both vehicles, and therefore, I -- the deployment was voided.
Q And that's the entire deployment -- the entire --
Q So all of the photographs --
A From that location were cancelled.
Q Was this error that you noticed on that date something that yon noted, or something that the camera alerted you to?
A No. It was something I observed. I was, uh – as I say, normally pay quite close attention to the vehicles going by.
Q My friend asked you -- well, first of all she stated that she had asked you to inspect the rear plate attached to this model, and I'm not sure if that was -- if you, in fact, inspected Unit number 204. Is that -- that's the un- --
A Yes. I inspected that one, uh, this morning.
Q My understanding is that the cameras always stay within the units, that they are mounted there in the stationary fashion, and that they don't --
A Yeah. They are assigned to the unit and they are not to be interchanged. If there's a problem with the unit, the whole u- -- the whole van is returned to Richmond for repair.
Q So as far as you know, when you utilized this Unit number 204 back on January 26th, l998, it would have had the specific unit in it that you noted or observed today?
A As far as I know. It's -- would be the same one.
Q And again, I don't mean to drag this out, but exactly what's recorded on the back of that plate, please?
A Uh, PR100 Autopatrol® System, and then it's, uh, Model PR100NZ.
Q So a model number --
A P -- no. Uh, a model -- I'm not sure if that has that na- -- the number on it now, or not. I –- it -- it's -- uh, PRlOONZ is the model number, whether it's the model number or not, but it's Model PR100NZ.
Q And it says Autopatrol® system specifically on it?
A Yes. That's the title on the top of the plate on the back, and then the next line is Model PR1100NZ.
Q And when you gave your evidence just now, you said PR100 and then Autopatrol® System. Is PR100 repeated twice?
A Yes. The, uh -- the speed camera system is available. I could bring it in if you wanted to have a look at it.
Q You said that you were trained on this system?
Q Do you recall at the time that you were being trained -- did -- do you recall giving any attention to the actual plate number or the system number?
A No I never had, until I was contacted, uh, by Defence counsel.
Q But your understanding is that you --
MS. PERCIVAL: Well, I'd object at this point. My friend's going to try to relate it to being the same as the PR 100, which, I expect, she's saying.
MS. MACHEK: No, I'm a- --
MS. PERCIVAL: I don't think my friend's in the position to --
MS. MACHEK: No, I'm not. I'm must going to --
MS. PERCIVAL: Very good.
Q What I'm going to -- my question is, my understanding is that your understanding is that you were trained on the same system as is in the van.
Q Okay, and do you have your training manual with you?
A No, I do not.
Q And what, when you were being trained -- was there jargon passed around about what you were being trained on?
A The Autopatrol® PR100.
MS. MACHEK: Okay. Those are my questions.
THE COURT: Thank you. Anything arising?
MS. PERCIVAL: Nothing arising.
THE COURT: Thank you. Thank you, sir, you're excused.(WITNESS EXCUSED)THE COURT: Anything else for the defence?
MS. PERCIVAL. No, Your Worship. That's the case for the defence.
THE COURT: Thank you. Any closing arguments? I believe in this particular case, defence will go first.
MS. PERCIVAL: Yes, Your Worship.
Well, as Your Worship can see, and I think it's a very material point, all the documentation relates to a certain device that has been prescribed under law, and, of course, we're dealing with the situation where there's no necessity to provide officers, and, in fact, documents can be substituted for their evidence. I think that's quite clearly what's occurred in terms of Exhibit 1, and Exhibit 2 and Exhibit 3. and I would submit in the circumstances it's also quite clear that these exhibits refer to a speed monitoring device that’s described as PR -- specifically, "Autopatrol®" with a little r -- this I'm quoting from -- this would be Exhibit 2, Your Worship, and then it has "(Speed Camera)" and then it goes "Model # PR 100)" And I think that's very clearly what the officer's under the belief, in fact, that he was using as a result of the documents or which, of course, he signed. Basically indicating that that was his belief. I think that's what he said.
Now, I think it's also very clear, as well, that when the officer actually looked at the name place on this particular camera and specifically the camera relating to this particular incident, that issued, if you wish, the ticket, the camera that issued the ticket, that, in fact, it is called Model PR100NZ, and I would submit that that is a material change or difference such that in its -- in terms of a speed monitoring device which my friend has pointed out, this relates, of course, to Section 83.1 of the Motor Vehicle Act, and it describes"Speed monitoring device means a speed monitoring device that's 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."That's the general term. Then when one actually turns to the specifics of this speed monitoring device -- and I do have a copy from the Regulations for Your Worship -- and this relates to the British Columbia Regulations Number 26. I do have a copy, if you wish.
THE COURT: That's okay. Let's just make sure that I have as the most recent what you have
MS. PERCIVAL: This I have dated February 20th, '98, as being the date.
THE COURT: Okay. Do you have a page number on the bottom? Are you from the same Quickscribe, or --
MS. PERCIVAL: Two thirty-eight.
THE COURT: Thank you. Are you referring to Section 41.01?
MS. PERCIVAL: That's correct, Your Worship.
THE COURT: I have it as a different pager but I have it.
MS. PERCIVAL: Oh, I'm sorry
THE COURT: But --
MS. PERCIVAL: I'll just read out what I have. I have, Division 41 -- speed monitoring device prescribed, and it's 41.01.'"For the purpose of Section 83.1(8) of the Act, the Autopatrol® --which I submit means registered trademark, and in brackets:"(Speed Camera: Model # FR 100) is prescribed.And then,"Specifically enacted B.C. Regulations 185/96 Section 2."THE COURT: Yes. I'm referring at 185/96.
MS. PERCIVAL: That's correct, and I submit in the circumstances that is not the device, in fact, that the officer was operating on that date, as per, I would submit, the speed monitoring device prescribed by law. That it's a different model. And in support of this argument, and again I basically think it goes to common law, that when one resorts to shortcuts, which I submit this is what the Crown does in terms of proving their case as to the photo radar, it must be specific and it must be accurate, and in support of that, Your Worship, I do have -- it's a rather old case law. My friend has also indicated that this also is the same situation -- I'm sorry, I’ll just give you this one here -- that occurs regarding breathalyzer machines, although the whole manner of breathalyzer in terms of its use in the field is different, that idea of prescribing a specific instrument and having to basically hold to that instrument, x would submit is, in fact, what is required, and I do just, as a way of illustration, have some copies of the different prescriptions that were made as to approved machines for purposes of breathalyzer. I'll just give Your Worship a copy of R. v. Foley. This is not a decision Your Honour obviously must follow because it does relate to a Supreme Court of Saskatchewan. It's just more illustrative of the argument I'm making as to the importance of these devices being very clearly and accurately indicated on certificates, which is, in effect, where I say is not the case here.
The constable has testified that although he indicated PR100, he checked the name plate and, in fact, says, PR100NZ as one category, and so I would submit that that invalidates to a certain extent -- not, of course, any -- overt dishonesty, but it shows the inaccuracy of basically his certificate on that point, and that as well it not being, I would submit -- it does not meet the requirement of being a prescribed speeding device in that it's inaccurately recorded if, in fact, it is a different model or has been updated perhaps since the prescription of the original one1 which, of course, date back to 1896, but there's no indication of that.
And, again, as illustration of that, I just went back to the breathalyzer requirements, and I’ll just provide my friend with a copy which relate somewhat to the Foley case in terms of showing what had occurred. It appeared that there was originally a certification of breathalyzer just called a Borkenstein, but then subject to nineteen- ninety -- 1974, excuse me, there was at least six different models that were prescribed and required to be listed as the machine being used in terms of preparation of the certificate, and what I've basically done is I've just copied from a book. Actually, the order of the amendments. And I've provided a copy to my friend. I don't intend to introduce them for purposes of exhibits. It is probably easier to follow starting with the second page, which starts with 1969, and it would appear the first Borkensteiner -- or the first instrument was approved, and then as it gets later in time, further, different types of breathalyzer instruments were being, basically, approved instruments. But they were updated continuously according, presumably, to technology that proved them to be approved in the circumstances.
And again, it's illustrative of the point that I've indicated, and I think Your Worship has the most up-to-date device prescribed and it is very clearly, and I submit, accurately described as a Model number PR 100, and I would submit that it's fairly clear that there's evidence before the Court that, in fact, the model number is not the PR100, full stop, but a PR100NZ.
And I would submit in those circumstances that the Crown has failed to prove their case on the basis that their certificates, because of their inaccuracy, Your Worship should not accept them as being full proof of the offence, and in the circumstances I would submit that B & L Security Patrol should basically have these charges dismissed.
That's basically my argument in a nutshell, subject to anything my friend might (indiscernible) to indicate.
THE COURT: Thank you.
Closing from the Crown.MS. MACHEK: The Crown, having just been given notice of this argument today is going to seek an adjournment, if not only a brief one, in order to do a bit of research myself on this, and in order to speak with other persons who may have come across this.
THE COURT: I think that that's not inappropriate, and we're in the fortunate position today that this is the only case we have to deal with this afternoon. Subject to anything defence has to say, I'm prepared to adjourn till 3:00. That's forty minutes. Is that sufficient, Madam Crown?
[MS. MACHEK]: I'll do what I can in forty minutes.
THE COURT: Okay. So, we'll adjourn and reconvene in forty minutes.
MS. PERCIVAL: Great.
THE COURT: Thank you.(PROCEEDINGS ADJOURNED)MS. MACHEK: Recalling the matter of B & L Security Patrol.
At this juncture, the Crown is going to seek an application for an adjournment in order to call rebuttal evidence. I've had some discussions, and what I anticipate is calling -- and first of all, I should state at the outset, in the Crown's submission this evidence was something that the Crown did not and could not anticipate, and that's the reason for the application to call rebuttal evidence.
The Crown is intending to contact and call evidence in the form of an expert who works with American Traffic Systems. The systems -- that's the company from which the devices are generated, and those -- the company that has control over the operations in the province. I'm going to be calling that individual with respect to giving evidence about what, if anything, NZ designates, and the fact that NZ designates New Zealand, the area in which the devices originated, but, in fact, anticipating that his evidence will be that Autopatrol® -- there is only one system, and that the NZ really is a technical addition to that model number and means nothing, and that, in fact, the approved device was -- approved by the legislature was this device that has an NZ on it.
That's the Crown's application.
MS. PERCIVAL: Well, yes, Your Worship. I object to the adjournment, obviously, in the circumstances. I don't think what my friend is proposing to do, in fact, is first of all relevant. What we're talking about is a device that is described as being PR100NZ, and that, in fact, it is not rightly prescribed under the Motor Vehicle Act, and as such is not the same as what the certificate said and therefore the certificates can't be used – and specifically -- and, again, I've made this specific to this particular case.
Constable Ferris testified to the camera that was used for purposes of basically putting this violation before the Court, and that is a PR100NZ, and I don't think it really matters if it's the same as the PR 100 or not. It's basically not properly prescribed. I think it's really a matter of law in terms of a factual issue, and not a matter of bringing in experts to go and start saying, "well, even though the law doesn't correctly describe it, you should disregard that because it's the same," because I submit that's not the issue before the Court.
The issue is that my friend has used certificates in order to prove the case, and in using this short-cut, as I explained earlier, it is upon them to be accurate and specific to particularly the speeding device that is authorized, and it they've erred in describing that particular device that is used compared to the device that is authorized, the Crown case just basically fails, no matter what NZ means or doesn't mean in the circumstances.
So I just don't see how my friend's adjournment could correct what I would submit is obviously a material error on the certificate in terms of this prosecution. So those are my objections, and obviously, as well, it's obviously of prejudice to my client because this matter will continue on again, and so on that secondary basis as well, we'd object.
THE COURT: Just give me a moment.
Fine, then. First of all, I'll deliver my decision with respect to the application to adjourn made by the Crown in order to call rebuttal evidence.
By way of summary, this would have to do with whether the addition of the two letters NZ as described by Constable Ferris in his evidence designates a different Autopatrol® Speed Camera from that prescribed in the legislation, or whether in tact, that is simply a designation indicating that this particular PR 100 originates in New Zealand. I'm not granting the application.
In this particular case, I note that the evidence is before the Court, that there cannot be retroactive changing of either the certificate, nor the legislation, both of which indicate that the prescribed speed monitoring device is the Model PR 100, without any designation.
Having said that, I then have taken it to the next step. What if the expert said, "Well, yes, ma'am, the PR 100, there should be a bracket behind there with the NZ to indicate that we made those in New Zealand because that's where our company was. In other words, this is exactly the same piece of equipment." I would still find that there was an evidentiary error in the Crown's case which operated in the favour of the accused.
If he said, "No. In fact, that's a different piece of equipment,” so contrary to what the Crown would expect, then it's a legal error, and in that case, obviously as well, the benefit would go to the accused.
So I am not granting the application to adjourn in order to call the expert from E.T.S. to clarify the issue of what NZ means.
MS. MACHEK: Thank you. I have further argument in that case, Your Worship.
THE COURT: Thank you.
MS. MACHEK: I'm going to point the Court to the Section 83.2(3) of the Motor Vehicle Act. That section 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 that certificate."And the Crown would then turn to Exhibit number 2, the Certificate of the Enforcement Officer Qualified Operator, Paragraph a) in which the Enforcement Officer states that on the date in question, between the hours in question, he operated what he describes as the "Autopatrol® (Speed Camera. Model # PR 100)" and he refers to that as:"A prescribed speed monitoring device which photographed motor vehicles while accurately and simultaneously measuring and recording their speed.”So in the Crown's submission, one of the facts alleged in that certificate is that the Autopatrol® speed Camera Model number PR 100 is a prescribed speed monitoring device, and that, in the Crown's submission, satisfies the requirement in section 83.2(2) (b) which states that:"The evidence must be gathered through the use of a speed monitoring device prescribed for the purpose of that section."Now, I note that -- and I rely firstly upon the case of the Crown in Gilbert, a case out of the Ontario Court of Appeal, which did not follow the Foley case which was handed up by my friend earlier in this hearing.
I must note that the Motor Vehicle Act, in terms of definitions, is not of help to us with respect to -- or of little help insofar that prescribed is defined there simply as -- there's no prescribed device outlined in the definitions, but I do believe that prescribed is defined, and it means:"Prescribed by this Act or by Regulations of the Lieutenant Governor in Council, or of the Minister.Pointing to the case of the R. v. Gilbert, it was found there that there was a identical or virtually identical section of the Criminal Code, identical, now, I mean, to subsection (3) of Section 83.2 of the Motor Vehicle Act, and that section stated that -- I'm going to just look for the case -- or the section. The section is -- sorry. I just read this briefly. Section 237 of the Code as it stood at that time is that that section then provided that."The certificate is evidence of the statements contained in the certificate without proof of the signature or of the official character of the person appearing to have signed the certificate."In the Crown's submission, that's very similar if not identical to the section that the Crown is relying upon here and, in that case, the certificate in question stated that the officer had utilized -- or that the breathalyzer test was performed on an approved instrument, and that was taken by the Court as sufficient proof of the fact that the test was conducted on an instrument approved of by Order of the Attorney General of Canada, pursuant to Section 237(b) of the Criminal Code.
In that case, it was the same case as in Foley insofar that there were specific instruments outlined in the Regulations, and regardless of that, the certificate did not set out a specific instrument but rather set out a general instrument that was utilized, and the Court found that that was sufficient, relying upon that statement that the -- by the officer that the piece of – the instrument being utilized was the prescribed instrument -- or, rather, the approved instrument
In this case, the Crown points to Paragraph a) of the certificate and would state that Your Worship can take this statement of Constable Ferris as a fact. That is, that the Autopatrol® Speed Camera Model number PR 100 utilized by him is a prescribed speed monitoring device and, accordingly, the Crown would submit that there is no fault here and that a prescribed device was utilized accordingly, the legislative requirements have been met.
Those are the Crown's submissions
THE COURT: Thank you. Any rebuttal?
MS. PERCIVAL: Yes, Your Worship. In my opinion, R. v. Gilbert can easily be distinguished from the case at bar, and as I'd indicated before the reason I had produced the Foley case was for the reasoning, not that in any way -- any more than I would submit this case is incumbent on Your Worship to follow. But here we have a situation where we have basically oral evidence, and it's very -- with the very certificate that is proffered to be basically PR 100, and he indicates that the machine he used is called a PR100NZ, and I submit that's a material difference, that by viva voce evidence I would submit shows the certificate to be in doubt is the beset way I can put it, and I would submit in all the circumstances, that being the case, it falls for Your Worship to find in favour of B & L Security Patrol in their application, basically, to have this matter dismissed.
As I indicated the -- it's not as if basically the situation is where by Mr. -- well, B & L Security Patrol has gone and appealed after the fact indicating, "Well, nobody specified." what's happened There, there's been an actual specification of the instrument. It does not mean a -- when it's described as a prescribed monitoring device and it does not mean that -- it does not equal the same definition. There is no evidence before the Court if there's one or two machines, or if they're from different places or have different updated perhaps, programs. We know it's a computer involved
There is no evidence to be able to say it's the same instrument, and r would submit that's basically what the Crown's asking you to do. Just to ignore the difference in the description of the model number that has been given by viva voce evidence by Constable Ferris over what has been just generically, if you wish to call it, used as PR 100 in the legislation as well as in the forms, and I submit that basically there's a doubt on the basis of the short-cut that the Crown's using by way of certificates.
We have a situation here where it's -- in the first place it doesn't involve any evidence of the offence. It's all done by means of, basically, machines, and that difference differentiates on a lot of standards. The breathalyzer machine situation, whereas, of course, we're all aware that in order for a person to basically fulfil a demand there has to be reasonable and probable cause by the officer to make a demand to use a breathalyzer, involves, I would submit, many more checks and security, if you wish, balances to ensure that there's not a wrongful conviction.
I would submit in this case, which involves only certificate evidence, that the detect in form which I submit is present before Your Worship should be sufficient to be in doubt that this is a prescribed device as indicated by the legislation, because it is not the same, and I submit it is a material difference and in those circumstances, you should deny my friend's application.
THE COURT: Thank you
MS. PERCIVAL: Excuse me, Your Worship?
THE COURT: Yes, ma’am.
MS. PERCIVAL: There is just one other point that I now recollect as well. Originally, when the Borkensteiner was approved, it was approved as the Borkensteiner, so there was an initial, I submit, indication of a generic with no numbers, just the Borkensteiner. I believe that was back in 1969, and then subsequently, obviously there was felt a need to specify, in fact, specific model numbers, which was continuously followed right through, basically. I would say to 1982 -- 1995, in fact. Yes, 1995, and so if nothing else, one could say that as long as Borkensteiner, which is originally all that was indicated was used, then one would rely on that and not have to specify further model numbers.
And so it's a different, I would submit, argument on that basis, because obviously there was an understanding that the Borkensteiner had different types of model numbers. Here. there's no evidence as to whether there's three or five or six types of PR 100's, 200’s, 400's, 300A's, anything of that nature. There's just one model number, and that's described as a model number, and that's 100 and that's what's designated as the approved monitoring device. So I would submit that also differs it, in a way, to the old case law that was obviously old case that Your Honour, of course, as I indicated, is not bound by, concerning the Borkensteiner certificates.
THE COURT: Thank you.
Fine, then, this is the decision with respect to Violation Ticket SC02558148. I note the Crown's evidence went in by way of the usual three certificates which provided evidence of all of the essential elements, and I will not go through those in depth as they do not relate essentially to my decision in this particular case.
Of interest is the fact that Constable Ferris was called by the Crown having -- by the defence, pardon me, having subpoenaed him, and he brought for the Court his deployment sheets, both the summary and the deployment register, and he explained for the Court what those documents proved and what they provided to him. I note that there was an error as in the deployment register as it was originally filed. However, that was changed by the officer today when he noted his error, and nothing changes on that error or its correction.
He testified that he was using Vehicle 204, which indicates this is Van number 4 out of Kamloops. He testified that he used that particular van with its camera for the entire block of the three-day shift he was working, and that there were no breakdowns or problems that he noted.
He was asked to look at the rear plate of the Autopatrol® camera, and to testify as to what this said. He testified that be inspected the rear plate of the Autopatrol® camera this morning with respect to that Unit 204, and that he found that it said that it was PR 100 Autopatrol® System, and then on the second line, Model PR100NZ, and that his recall of what he had read on the plate indicating the model number was that the PR 100 and NZ were continuous with no spaces between any of those groups. He testified that this was identical to the device which he was trained on.
He was asked if the certificates which he filled in and provided along with the roll of film were in conformance with the Motor Vehicle Act and its regulations. His testimony was that it was computer generated in which he filled in the blanks. So essentially, he is relying on someone else to provide him with the appropriate format, if and when the legislation changes, and he testified that there have been changes in the format of the Certificate of Enforcement Officer Qualified Operator since he has started doing this job, and he testified that he has been with the photo radar section of the R.C.M.P. since November 1st, 1997.
The only portion of that document, computer generated with blanks, which he does not change in terms of underlined material contained on Exhibit 2. the Certificate of Enforcement Officer Qualified Operator, is the name of the device which specifically sets out in Paragraph a) an "Autopatrol® -- with the registered mark in a circle in upper case -- (Speed Camera: Model # PR 100) that this is something which is continuously filled in as part of the form, not something that he adds, in contrast to the date, the location and whether he was photographing the vehicles coming to or moving away from his device.
On cross-examination by the Crown he indicated that he had inspected the rear plate of the unit in 204, and that this would be the unit assigned to that van and would not have been interchanged had there been a problem with either the van or the camera unit, and the entire van and unit would be going down to Richmond for repair and return.
He testified he had never looked at the plate on the rear of the unit prior to today, did not have the training manual with him, and indicated that as far as he was concerned, the unit was called Autopatrol® PR 100.
In argument, counsel for the defence pointed out that there is a difference in the evidence presented by Constable Ferris today where he says that the plate on the back of the unit says that it is PR100NZ, with respect to the model number. when compared with that of This certificate, where it says, 'Autopatrol® (Speed Camera: Model it PR 100), she submits that this is a material difference and therefore the prescribed model is not being used, and points out to the law which says where the Crown is utilizing short-cuts, their evidence must be accurate and to carry that to its conclusion, I add, any ambiguities would operate in the favour of the disputant or the accused.
Defence, Ms. Percival, introduced the case R. v. Foley, in pointing out that this was illustrative not binding and that is a Saskatchewan Queen's Bench case of 1975 dealing with an error, if I might call it that, on a breathalyzer certificate in which the type of Borkenstein Breathalyzer was not placed on the certificate.
With respect to both that case and the case of R. v. Gilbert, a case provided by the Crown, which did not follow R. v. Foley and is an Ontario Court of Appeal case, 1976, I find that both of those cases are distinguishable in that as I read them, they deal with a technical error on a certificate, and whether that should operate to invalidate the certificate or not. And I note that in each of those cases, the Courts went in different directions, and I note as well that the Nova Scotia Court of Appeal chose to follow Foley, where the Ontario Court of Appeal did not. However, I distinguish those based on the reading of the case, in which it does not indicate that there was contradictory viva voce evidence. They are simply looking at a certificate which is incomplete in that it indicates it's a Borkenstein Breathalyzer and doss not indicate which model. and so that is, therefore, different than the case before me where we had the officer in his viva voce evidence saying' that the model number is one thing, and where his certificate says that it is another. So I distinguish both of those cases, and they have not influenced my decision in the case before me.
Madam Crown also applied for an adjournment in order to call rebuttal evidence, and that was denied based on the reason that the anticipated evidence would not influence my decision in the case before me, whether it supported her proposition that basically this was a PR 100 made in New Zealand. Nor would it change my decision if the expert told us this was a different model.
It is a fundamental principle of law that where a statute has modified the common law in such a way as to make it easier for the Crown to prove its case, that the law will be strictly construed, and if there is any ambiguity it will be interpreted in favour of the accused. This principle was set out in R. v. Noble (1977) 37 C.C.C. (2d) 193 at 198. It was also supported in the case Paul V. The Queen (1982) 67 C.C.C. (2d) 97 at 106, also a case of the Supreme Court of Canada, and I was directed to these cases by the case of R. v. Paul Raymond Smith, January 28th, 1998, British Columbia Supreme Court decision of the Honourable Madam Justice Allan, and I find that is exactly what has occurred in the case before me.
The evidence submitted by the Crown in the certificate indicates that the Autopatrol® Speed Camera Model PR 100 is the prescribed speed monitoring device, and that the officer has also certified he is qualified to operate the prescribed speed monitoring device. If one wishes to know what the prescribed monitoring device is, it's necessary to go to the Motor Vehicle Act Regulations enacted under the Motor Vehicle Act, where Section 41.01 says:"For the purposes of Section 83.2, the photo radar sections of the Motor Vehicle Act, the Autopatrol®"-- and that's again the registered sign --"Speed Camera Model PR 100 is prescribed."This, therefore, is the model which the Government has approved for use in British Columbia, thus giving it a presumption of accuracy, elevating it in some specific way.
The officer today testifies that the plate on the rear of the unit, in fact, says Model PR100NZ. This raises an ambiguity or a contradiction similar to that referred to in the Supreme Court of Canada the cases previously mentioned, as well as the reasons for judgment of Madam Justice Allan, and find in this case that the ambiguity operates in favour of the accused.
I find that the case must be dismissed in favour of the accused, as I am not satisfied that the unit being operated on the date and time in question was, in fact, the prescribed speed monitoring device.
MS. PERCIVAL: Thank you, Your Worship.
THE COURT: Thank you.(PROCEEDINGS CONCLUDED)