R. v. Etherington
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Mr. Michael Etherington
Defendant, representing his own self
Motor Vehicle Act R.S.B.C. 1979, c.288.
ss. 75, 76, 76.1, 76.2
ss. 151(1), 151(3), 152
ss. 202, 211(1)(h), 211(2)
Motor Vehicle Act Regulations B.C.Reg 26/58
ss. 41.01, 41.02
Division 23 and Schedules
Offence Act R.S.B.C. 1996, c.305.
Sir Rupert Cross, Statutory Interpretations (London: Butterworths, 1976).
A. Shakoor Manraj and Peter Douglas Haines, The Law of Speeding and Radar, Second Edition (Toronto: Butterworths, 1991).
John Sopinka, Sidney N. Lederman and Alan W. Bryant, The Law of Evidence in Canada (Toronto: Butterworths, 1992).
The Oxford English Dictionary, Second Edition, Volume XV (Oxford: Clarendon Press, 1989), pp. 449-53.
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 an evidence pursuant to s. 76(2) [should be 76.1(2)] of the Motor Vehicle Act. This certificate appears in schedule A of the Motor Vehicle Act Regulations, B.C. Reg. 26/58. On this certificate, an Enforcement Officer has stated that on 17 September 1996 at 1624 hours at a unique deployment site bearing code number 105201, a vehicle bearing licence number EBT908 was recorded travelling at the speed of 91 kilometers 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 A496 on a photograph frame number 019. The certificate also contains number 111, reflecting the identification number of the qualified operator. The certificate was signed on 16 November 1996 by an Enforcement Officer #607 of the Integrated Traffic Camera Unit. Attached to this certificate is the vehicle image and data line as recorded by the prescribed speed monitoring device.
4. Certificate number 2, "Certificate of Enforcement Officer: Qualified Operator. Motor Vehicle Act: Section 151(3)", was entered by the Crown as an evidence pursuant to s. 76(2) [should be 76.1(2)] of the Motor Vehicle Act. This certificate appears in schedule F of the Motor Vehicle Act Regulations, B.C.Reg. 26/58. On this certificate, the Enforcement Officer #111, whose number appears as identification number of the qualified operator on the data line underneath the vehicle image, has stated that on 17 September 1996 between 1546 and 1755 hours, the said officer was operating a prescribed speed monitoring device, namely AutoPatrol® (Speed Camera: Model #PR100), at a unique deployment site at "Hwy 99 south bound approximately 50 m. from the Loggers Creek at or near Squamish in the Province of British Columbia." This site bore a unique deployment code number 105201. The speed of the said vehicle was measured and recorded on a photograph while it travelled south at that unique deployment site.
5. The speed monitoring device named in Certificate 2 is prescribed pursuant to s. 76.1(8) of the Motor Vehicle Act and has been named as "AutoPatrol® (Speed Camera: Model #PR100)" in s. 41.01 of the Motor Vehicle Act Regulations. Enforcement Officer bearing identification number 111 has certified that on the day and time in question and at the unique location, the said prescribed device was tested in accordance with the manufacturer's specifications and it appeared to be in proper working condition for accurately and simultaneously measuring and recording the speeds of vehicles in its range. In a subsequent paragraph, the said officer provides description of the numerals and letters recorded at the bottom of the vehicle image that is attached to the Certificate number 1.
6. The enforcement officers signing Certificate numbers 1 and 2 are designated entities pursuant to s. 121(2)(b) of the Offence Act R.S.B.C. 1996, c.305.
7. Certificate number 3, "Vehicle Ownership: Licencing Information", was entered by the Crown as an evidence pursuant to s. 75 of the Motor Vehicle Act. This certificate contains an extract from a record kept by the superintendent regarding the licensing information for the vehicle bearing BC licence number EBT908. This certificate, signed by the superintendent on 7 November 1996, establishes that from 20 November 1995 to the day of the issuance of this certificate Mr. Michael Etherington of North Vancouver, BC was the registered owner of the said vehicle.
8. The defendant, Mr. Etherington, stated that he travels Highway 99 at least three times a month for business and for pleasure. Noting that the said highway is a "very dangerous highway", he went on to state that
10. The defendant on cross examination testified that he frequently looks at the speedometer of his vehicle. This is an excerpt from cross examination of the defendant as conducted by Ms. Mahaffey:
b) Proof of the location of the traffic sign is not required. It's sufficient to state that there is a sign.
c) In the event that there is no sufficient proof of the sign posted on a highway then defendant must be found guilty of violating statutory speed limit of 80 km/h pursuant to s. 151(1) of the Motor Vehicle Act.
d) Even if the speed at the unique location where the defendant's motor vehicle was photographed was 90 km/h, the accused is still exceeding the speed limit.
12. Section 76.2(4) of the Motor Vehicle Act stipulates that:
14. Counsel for the Crown Ms. Mahaffey submitted that "there is no reason for this Court to call the qualified operator, pursuant to the principles that have been spelled out in law, which I have provided you."3 The Crown stated that the purpose of cross examining the enforcement officer should be to challenge the contents of the certificate [R. v. Rasmussen (1980), 9 M.V.R. 21 (B.C.S.C.)]; or be based upon the inference that failure to allow such cross examination would impair the right of the defendant to make full answer and defence [R. v. Anutooshkin (1994), 92 C.C.C. (3d) 59 (B.C.C.A.)]; and should not compromise the legislative purpose of putting "some control on the calling of technicians" while balancing it "with the very important public object of allowing the defendant to have a full answer and defence" [R. v. McCulloch (1970), 3 C.C.C. (2d) 258 (N.S.Co.Ct.)].
15. Although Mr. Etherington was duly advised as to his rights pursuant to s. 258(6) of the Criminal Code and s. 76.2(4) of the Motor Vehicle Act, he chose not to pursue the matter with respect to cross examining the enforcement officer. Any further discussion of this issue would therefore be moot.
16. Section 151(3) of the Motor Vehicle Act reads as follows:
(b) that the vehicle in question was speeding contrary to regulatory maximum speed limit in that area;
(c) that on the day and time in question there
were regulatory signs posted which were clear and unobstructed.
18. It is issue (c) from the above paragraph #17 that will be examined in this judgement. At the heart of my analysis is the presumption that the Minister of Transportation not only causes regulatory signs to be erected but also has duty to cause these signs to be maintained in proper condition. I respectfully presume that the purpose of erecting regulatory signs is to ensure public safety and this can be met when the authority that places the signs ensures that signs are posted at reasonable distance and are conspicuous. The contrary would appear as if that same authority is playing some sort of "Where's Waldo" game with public. As well, the same authority ensures reasonable maintenance of such signs. The evidence of these facts would create a rebuttable presumption of a prima facie proof of signs. It would then be up to the defendant to adduce evidence to the contrary.
19. The Crown is proposing that a simple statement that a regulatory sign was erected pursuant to s. 151(3) is a sufficient evidence and that the Crown had no burden to prima facie prove the existence of such sign by adducing evidence of location or physical condition of the said sign. In R. v. Strong (1988), 13 M.V.R. (2d) 106 (N.S.Co.Ct.) the learned appeal Judge while overturning acquittal of the defendant, stated that
Common sense would indicate that it was never the intention of the legislature
to place the interpretation found by the learned trial Judge on the said
section. If this was the intention of the legislature, it would mean cluttering
up our villages and towns with speed zone signs erected at each street
intersection, as well as erected on each street at intervals so that they
would always be visible to operators of motor vehicles traversing said
streets, or highways.
21. As such, the mere statement that "there was a sign in place" is probably a factum probandum, that is a proposition which must be proved by adducing material evidence.4 In the absence of material evidencing this proposition, this proposition may appear to be a simple "presumption of fact". According to Wigmore, presumption of fact is "merely an improper term for the rational potency or probative value of the evidentiary fact and is regarded as not having this necessary legal consequence." Needless to say, Wigmore advocated that this term be "discarded as useless and coufusing."5 In order to establish a prima facie proof of the sign being in place, the Crown needs to adduce evidence regarding display and location of such sign on the day and time in question. Strong (supra) does take into account evidentiary elements such as "display" or "location". The main concern of the learned Appeal Court Judge was probably quantitative or how many signs need to be erected.
22. In R. v. Redden (1978) 1 M.V.R. 119 (N.S.S.C.) it was affirmed that a speed sign 5 kilometres prior to the place of offence was not a sign. In my opinion it is important that the enforcement officers setting up unique sites must ensure that there is a maximum speed limit sign at a reasonable distance from this location. They would then be able to adduce evidence probably to the following effect and appended to the last sentence of the last paragraph in Certificate #2 "The said sign, located approximately (distance) from the unique deployment site (number) was seen by me at (time) hours on (day) and it appeared to be clear and unobstructed. From the said sign to my deployment site that day there was no other maximum speed regulatory sign."
23. The case of R. v. Keenan (1994) 3 M.V.R. (3d) 21 (B.C.S.C.) in particular paragraph 14 that appears on page 25 and reads as follows:
25. In my respectful opinion, the issue relevant to signs that the Honourable Selbie J. dealt with in Keenan was not about the sufficiency of evidence with respect to the signs per se. The issue was whether or not the signs were a proof of the municipal by-law limiting the speed of motor vehicles. Affirming an earlier decision of the Ontario Court of Appeal in an identical case of R. v. Clark (1973), 1 O.R (2d) 210 (H.C.J.) (1974), 3 O.R (2d) 716 (C.A.), the BC Supreme Court held that "evidence of speed limit signs is a sufficient proof of by-law which limits speed" that is, regulatory signs when erected create a "presumption of regularity" with respect to the by-laws. But the Crown must adduce sufficient evidence to prove beyond reasonable doubt placement of such signs. In my opinion, placement, unobstructiveness and distance the sign is located from the site of an alleged offence are essential evidentiary elements that the Crown must adduce to prima facie prove the existence of the signs. Only after these elements are adduced that the signs can be presumed to be erected under lawful authority. In England, for example, traffic lights are presumed to be in working order because of the presumption of regularity. "However, the presumption may not be used to establish an ingredient of a crime in criminal proceedings if the regularity and the propriety of the matter in question are disputed at trial."6
26. In sum, the probative value of signs is contingent upon whether or not the Crown has established a prima facie case of an alleged disobedience of the said signs. In other words, when charging someone for contravening its by-law, a municipality must then prove that these signs were duly erected. As well, prove that on the day of the commission of the alleged offence these signs were posted at a specific location and were clear and unobstructed. In Keenan it was affirmed that the burden of proof is on the Crown to present an uncontradicted evidence at the trial that the signs were erected.
27. In this case, the Crown's evidence with respect to signs as contained in the last sentence of the last paragraph of Certificate number 2 was insufficient in it that it failed to state the approximate location of the signs in question and whether or not these were clear and unobstructed.
28. The last sentence of the last paragraph of Certificate number 2 states that:
30. For example, it could be argued that prescribed device AutoPatrol® (Speed camera #PR100) that has a statutory personality would probably be a better "candidate" for presumed regularity or accuracy. Yet, the entire paragraph 2 in the Certificate #2 is devoted to establishing its accuracy by adducing evidence of tests. The Crown's inability to adduce sufficient evidence of signs must provide benefit of doubt to the defendant.
31. The Oxford English Dictionary defines the term "sign" as a "signal; to intimate, to convey." The commonsense ingredients of a sign are that it must be perceptible by sight or hearing because of its intended use for conveying regulation, warning, direction or information. In Pullman Co. v. Carter 6S.E. (2d) 351, 355, 61 Ga.App. 543, a sign is defined as "a lettered board or other conspicuous notice or publicly displayed token or notice." In all of the definitions here the universal thread is that of the conspicuousness of the sign.
32. Section 151(3) of the Motor Vehicle Act clearly states "when a sign has been caused to be erected..." accordingly the onus is on the Crown to show that the sign was caused to be erected through presentation of the facts with respect to the clarity, unobstructiveness and placement of a sign vis-à-vis the location of the prescribed device. I realise that the Motor Vehicle Act is at best "silent" about the placement of the signs. But this does not exonerate the Crown to adduce evidence with respect to the location of the signs.
33. In the case of Mr. Etherington, such requirement becomes extra necessary because on Certificate #2, the "unique location" is identified as being "Hwy 99 50 m. north of Loggers Creek". The Crown stated that "50 m." means "50 metres" but that was only an assumption. The Concise Oxford Dictionary defines "m." as "abbr. maiden (over); male; mark(s); married; masculine; metre(s); mile(s); milli-; million)s); minute(s)."9 The assumption that "50 m." stands for "50 metre" is as good an assumption as "50 miles" or "50 minutes". These assumptions make the unique location #105201 anywhere from being 50 metres north of the Loggers Creek to being either 50 miles or 50 minutes drive north.
34. The great deal of emphasis on markings and visibility aspect of the signs in Division 23 of the Motor Vehicle Act Regulations could be inferred as an indicator of the desire of the framers of this statute that the posted regulatory signs ought to be seen and followed. That is the purpose of speed limit signs is public safety and not aesthetic pleasure. An evidence of this effect when uncontradicted would meet evidentiary standard established in Keenan. In this case, the Crown has not been able to adduce "uncontradicted evidence" of the signs beings posted as is the requirement in such cases as established by Selbie J. in Keenan.
35. The Crown's proposition is that since the defendant was doing 91 km/h, even if there was no sign posted, he was in contravention of s. 151(1) of the Motor Vehicle Act. The said section reads as follows:
38. As stated above, the Crown has not been able to adduce sufficient evidence for the speed limit signs. Hence an inference that the speed limit signs, if at all present, may have shown maximum limit of 90 km/h because Mr. Etherington stated that he had been diligent in periodically checking his speedometer and that he was certain of driving within the speed limit. The Crown did not contradict Mr. Etherington's contention that the speed limit fluctuates between 80 and 90 km/h. His vehicle was photographed doing 91 km/h. In Cook (supra) the defendant was clocked at 130 km/h. The learned Judge maintained that the vast difference between the speed limit and the speed of the accused has rendered many arguments of the defence weightless. In the case of Mr. Etherington the difference is one kilometre if we accept the theory that there probably was a sign showing maximum speed limit of 90 km/h.
39. The strict statutory application would indeed lead to the inevitable conclusion that when a maximum is set at 90 even one kilometre over that speed would be an offence. However, such application would probably be extraordinary or even an abnormal instance. While the "construction of a statute is a question of law... The judge takes judicial notice of ordinary meanings contained in the statute and chooses the one that he considers to be the most appropriate in the context."10 Although I take judicial notice of ordinary meanings within the normative societal context, I am often challenged when dealing with, albeit rarely, speeding charges against the drivers going 3-4 km/h over the maximum speed limit. A driver charged with only 1 km/h over the limit is indeed an aberration. Must this aberration be cured by entering conviction for the defendant? In my respectful opinion such cure would in, all likelihood, be an aberration in itself.
40. Nevertheless, I agree with the Crown that doing 91 in a 90 km/h speed zone is an offence. However, I would like examine this issue in the context of public policy as well as legal precedence.
41. With respect to the question of legal precedence, I have not come across any case law that would instruct me on convicting a defendant who is going 1 km/h over the speed limit. I believe that it would be quite a Herculean task to prove an offence of speeding beyond reasonable doubt in this instance. If asked, the courts would then have an obligation to rule whether the presumption of accuracy of the prescribed devices imply their infallibility.
42. Mr. Etherington has also raised the issue regarding "threshold speed". His source of information is a brochure published by the Government of British Columbia under the authority of the Attorney General of BC. It may well be argued that officially-disseminated information regarding "threshold speed" being 10 to 19 kilometres over the maxmum speed limit may have created a presumption of an officially-induced error.
43. The fundamental task of a trier in the cases such as this one is to find the truth - "The essential purpose and feature of the trial system in our society is the search for the truth".11 In this society the Courts are generally credited to be an institution that is in a perennial quest for truth. Public, who is told in an authoritative government brochure that there is some sort of "threshold speed" between 10-19 kilometres over the maximum speed limit does not deserve to be convicted in a Court of law for going one kilometre over the maximum speed limit. Such a conviction will probably erode legitimacy and acceptability of our legal system.
44. During trials involving the non-photo radar cases arising out of s. 151(3) or for that matter other sections of the Motor Vehicle Act respecting the signs such as 151(4), 151(7), 152 or 202, witnesses for the Crown, in order for them to establish prima facie proof with respect to the signs being disobeyed, clearly and at times painstakingly present their sworn or affirmed evidence as to the location of such signs and whether or not these were clear and unobstructed on the day and time of the commission of an alleged offence. Presentation of evidence with respect to location, clarity and unobstructiveness of the regulatory signs is one such standard which helps the trier's arrive at truth. I see no reason to compromise this standard when dealing with matters arising out of s. 76.1(2) of the Motor Vehicle Act.
45. The Certificate number 2 states that the signs were erected. But nowhere it is stated that approximately how far these signs were from the unique deployment site and whether or not on the day and time in question an enforcement officer personally saw these signs posted as well as clear and unobstructed.
46. The underlying purpose and value of the Motor Vehicle Act is public safety. In the overall scheme of this Act, signs play a vital role and in Division 23 of the Motor Vehicle Act Regulations fair elaboration is made as to quality of signs emphasising their visibility. Such statutory emphasis on visibility and clarity of signs ought to be reflected in the standards of evidence with respect to the signs.
47. Mr. Etherington successfully raised the question about the frequency of changes in the maximum speed limits on Highway 99. As such he successfully raised a reasonable doubt with respect to signs either not being posted or being temporarily covered in the direction of Mr. Etherington's travel. I have no reason to disbelieve him.
48. Based upon the evidence presented by the Crown and the defence, my interpretation of R. v. Keenan as well my analysis of the issues, I must enter an acquittal for Mr. Etherington.
Oral judgement and draft written reasons for judgement presented on
04 March 1997 at the City of Richmond in the province of British Columbia.
Final written reasons for judgement completed and presented on 06 March