Before Justice of the Peace M. Coopersmith
On November 16, 2009, Stefano Galluzo was charged under Part 1 of the Provincial Offences Act, R.S.O. 1990, c. P. 33, as amended [“POA”], with “speeding 60 km/h in a posted 50 km/h zone” contrary to section 128 of the Highway Traffic Act, R.S.O. 1990, c. H.8, as amended [“HTA”].
Evidence going to this offence was heard at trial on April 28, 2011. Officer Firth of Durham Regional Police Services gave evidence on behalf of the prosecution. The defence called no witnesses.
I. THE ISSUES
There are two issues this Court must now address.
1. Have all of the elements of the offence been proven beyond a reasonable doubt to support a finding that the defendant was speeding, as he travelled southbound on Garden Street in the Town of Whitby, around 10:35 on the morning of November 16, 2009, contrary to section 128 of the HTA?
2. If so, should the rate of speed be 60 kilometres per hour in a posted 50 kilometre per hour zone, as charged by the police officer exercising roadside discretion, or ‘amended up’ to 71 kilometres per hour in a posted 50 kilometre per hour zone, as provided by the reading on the speed measuring device?
II. THE EVIDENCE
The only witness at trial was Officer Firth, who testified on behalf of the prosecution. She began her policing career in 2003 with the Kawartha Lakes Police Services. In 2005 she joined the Toronto Police Services and in 2008 moved to Durham Regional Police Services [“DRPS’]. She began her November 16, 2009 dayshift at 7:00am, in full police uniform, assigned to speed enforcement out of 18 Division in the Town of Whitby. She was equipped with a LTI 20/20 TruSpeed Lidar measuring device, which she transported to her fully marked police cruiser in a hard case and placed on the front passenger seat. She had been trained as an operator of this device by Durham Regional Police Officer James Wright when she first joined the DRPS in November 2008. She took no training directly from the manufacturer of this laser device, nor was she aware of Police Constable Wright’s qualifications or where he had been trained. Her training consisted of several hours of classroom and field work on how to operate the device and how to test to ensure it was in proper working order. She was not required to read the full manual for the device, but she did read the manufacturer’s testing procedures. Officer Firth was also trained in estimating speeds visually. In order to pass her training on this speed measuring device, she was given 50 visual observations of moving motor vehicles in which she had to correctly identify the rate of speed within 5 kilometres per hour.
At 8:00 the morning of November 16, 2009, prior to leaving the police station, as was her usual practice whenever she took out the LTI 20/20 TruSpeed Lidar, Officer Firth tested the device in accordance with the manufacturer’s recommendations and found the device to be in good working order. In the parking lot of the police station, she conducted the four tests set out by the manufacturer. First, Officer Firth powered on the device for the ‘start up test’, as the device underwent an electronic self test. Secondly, the ‘display test’ ensured all the lights and displays on the device were working correctly. The third step was the ‘fixed distant velocity test’. The manufacturer recommended a target 60 metres from the device; however, if not enough room was available, then that distance was not critical and the distance between the device and the target had to be a multiple of 1 metre. Officer Firth testified that she had never measured the distance herself, but relied on a line which had been painted on the parking lot, measured at 50 metres from the target (back door of the police station) by the police officers qualified by the DRPS as Instructors for the speed measuring devices. The fourth and final test was the vertical and horizontal ‘scope alignment test’, to ensure the scope was properly aligned. Also, the scope alignment test used sound to indicate when the scope was on the specific target. Officer Firth used the same hydro pole each time she tested the device in the police station parking lot. The manufacturer recommended a prominent target with well-defined horizontal and vertical edges, such as a hydro pole, and to have the target at a distance of 200 metres. Officer Firth had never measured the distance, but instead she relied upon the distance having been measured out by the Instructors. All four tests are performed at the police station and the same landmarks were used each time.
In cross-examination, Officer Firth was asked about a ‘delta test’. She was not familiar with this test until after she read the manufacturer’s testing procedures again. She then advised the Court that either the ‘delta test’ or the ‘fixed distance zero velocity test’ may be undertaken and that she was trained to do the latter test. Since it had never been her practice to conduct the ‘delta test’, she did not use that part of the testing procedures and it did not sound familiar to her when the defence agent asked her about it.
After leaving the police station, Officer Firth set up for speed enforcement at Garden Street and Colette Drive in the Town of Whitby, in the Regional Municipality of Durham. She parked her vehicle facing east on Colette Drive and stood outside it, observing traffic on Garden Street, which has two northbound and 2 southbound lanes. The maximum speed limit is posted at 50 kilometres per hour in both directions. At about 10:35am, she observed a white motor vehicle travelling southbound on the inside lane of Garden Street at a rate of speed which appeared to be above the posted speed limit. She targeted the front plate of the vehicle with the speed measuring device, ensuring there were no obstructions between her and the target vehicle, and she obtained a reading on the LTI 20/20 TruSpeed Lidar of 71 kilometres per hour when the vehicle was 246 metres from her location. This reading matched or confirmed her visual observations.
Officer Firth did not lose sight of the targeted vehicle, as she conducted a traffic stop. Upon making a demand for documents from the driver, she was provided with his Ontario photo driver’s license and, after comparing the photograph to the driver of the vehicle, Officer Firth was satisfied that the driver was Stefano Galluzo, with a date of birth of September 23, 1976. Keeping in mind the demerit points and amount of the fine, Officer Firth exercised her discretion at the roadside and issued a Provincial Offence Notice to the defendant at a lower speed than she believed he was travelling, that is, speeding 60 kilometres per hour, instead of 71 kilometres per hour, in a 50 kilometre per hour zone, contrary to section 128 of the HTA.
At the end of each shift when Officer Firth returns the LTI 20/20 TruSpeed Lidar to the police station, she always tests it according to manufacturer’s specifications to ensure it continues to function properly. She testified that, as in the morning, she again tested the device at the end of her shift and to find it in good working order.
In cross-examination, the defendant’s agent asked Officer Firth about several things that were not in her notes. When asked about guidelines to note taking as a general practice that was part of Officer Firth’s police training, she replied that each police officer will adopt his or her own method that will work for him or her to refresh his or her memory. When asked what the purpose of note taking was, she said that it was to document an incident and to later refer to the notes, if necessary. Accurate note taking was important. Note taking after each offence notice was issued roadside was not always possible, for example, if one was called away for an emergency. The normal action each time was to take down what one felt was necessary to refresh one’s memory. She was asked about not recording testing times, to which she stated she relied upon her standard practice before leaving the station and upon her return to the station. When Officer Firth then was asked if the elements of the offence were important enough that they required a note being made, Officer Firth responded that a note was not necessary every time.
When asked why there was no reference to testing the speed measuring device after the traffic stop, she replied that she tested the unit at the end of her shift and does not make reference to that in her notes. She did not vary from her usual practice. On the day in question, she tested the unit and it was not malfunctioning.
1. Was the Defendant Speeding, Contrary to Section 128 of the HTA?
Some of the essential elements that make up the offence of speeding and other factors needed to prove the charge beyond a reasonable doubt are not in dispute or have not been challenged in cross-examination. The defendant was travelling southbound on Garden Street in the Town of Whitby on November 16, 2009 when he was stopped by Officer Firth at around 10:35am. The defendant provided the officer with a valid photo Ontario Driver’s Licence, from which she properly identified him as the driver of the motor vehicle she observed travelling at a higher rate of speed than the posted speed limit of 50 kilometres per hour. And there is no contradictory evidence or reasonable doubt regarding the officer targeting the front license plate of the defendant’s motor vehicle without obstructions or other vehicles in the way, thereby ensuring that the speed measuring device was operated properly in reference to the defendant’s motor vehicle.
(a) Qualifications of Officer:
The defendant’s agent claims the police officer was not adequately trained and qualified to use the LTI 20/20 TruSpeed Lidar because she was not trained by the manufacturer and she was not aware of the training and qualifications of her trainer, Officer Wright. In support of his argument, he provided the Ontario Court of Justice appeal decision, R. v. Martin, 2007 ONCJ 217 (CanLII), in which Wright J. writes at paragraphs 19 and 20:
No evidence was adduced that Officer Zarrello had ever received any training in the use of the “laser” device from, by or on behalf of the manufacturer of the very device he was using.
By any objective assessment of the totality of Officer Zarrello’s evidence it could not be said that Officer Zarrello was trained or experienced in the operation of the “laser” device.
The prosecutor submits that it is not an essential element of the offence that the officer be qualified in any particular manner. In the Ontario Court of Justice appeal decision, R. v. Williams,  O.J. No. 1078, Pockele J. states at paragraph 5:
It is not an essential element of the offence that the officer who observed a speeding offence and wrote the ticket be “qualified” in any particular manner according to Ontario law; however it would appear that in the Alberta, R. v. Werenko, the Crown is required to prove that the operator of a speed detection device is qualified by virtue of (i) following a course, (ii) passing an exam successfully, (iii) having several months of required experience. It would appear that the issue of being “qualified” in Ontario must be proven beyond a reasonable doubt on a standard less defined than it is in Alberta.
Justice Pockele continues at paragraph 7:
There is no requirement in the Highway Traffic Act that the operator of a speed detection device achieves a certain level of qualification as a prerequisite to accepting the operators evidence of rate of speed; the fact that an operator received no training whatsoever, or received training deemed appropriate by his superiors, this may be qualification, or was relatively inexperienced although properly trained and qualified, are all factors which the Judge or Justice of the Peace can take into consideration when weighing the evidence to establish whether the rate of speed has been established beyond a reasonable doubt or whether the defence has raised a reasonable doubt. It is important to remember that the weighing or assessing of the evidence must not be done on a piecemeal basis and must only be done having regard to all of the evidence before the Court. This is R. v. Morin, 1992 CanLII 40 (SCC),  3 S.C.R. 286, in Supreme Court. It is also important to remember that contradictory evidence is one of the most important factors to consider in weighing evidence.
Officer Firth testified that she spent a few hours being trained on the LTI 20/20 TruSpeed Lidar about a year before the incident before this Court. It was the only speed measuring device upon which she was trained and which she used in the course of her speed enforcement duties since she joined DRPS in 2008. Although she was not required to pass an examination at the end of her training, she was required to successfully indicate the speed of 50 moving vehicles within 5 kilometres per hour prior to being assigned to speed enforcement duties. Both in examination-in-chief and in cross-examination, the officer was able to respond knowledgeably to the questions she was asked on the testing and use of the speed measuring device. When asked by the defendant’s agent about the ‘delta test’, she had to re-read the manufacturer’s testing procedures to find that this is a test she did not use as it was an alternative test to the one she always performed. I accept this response as a reasonable explanation for her lack of knowledge in this area.
Officer Firth was unaware of Officer Wright’s qualifications as a trainer. She did not know if he had been trained by the manufacturer of otherwise. All that she was able to provide was testimony that he was qualified as an Instructor for the DRPS on the particular speed measuring device she used.
 In weighing the evidence before the Court, I am not convinced that Officer Firth must be trained by or on behalf of the manufacturer in order to be qualified to properly test and operate the speed measuring device. To ask if Officer Wright was trained by or on behalf of the manufacturer would require the Court to as, “Who trained the trainer?” and “Who trained the trainer who trained the trainer?” This argument of infinite regression is not one along which this Court wishes to proceed. [See e.g. R. v. Versage, 2008 ONCJ 80 (CanLII),  O.J. No. 781 (O.C.J.) at para. 54.] DRPS has ensured that Officer Wright is qualified as a trainer on the speed measuring device and, as such, I accept he is deemed qualified as an Instructor to pass along his knowledge and to instruct and train other Durham Regional Police Officers on the testing and use of the device in speed enforcement throughout the Regional Municipality of Durham.
As is evidenced by Exhibit 1, the manufacturer’s testing procedures provide step-by-step instructions in a user-friendly format. A reasonable inference may be drawn that the manufacturer anticipates users to be able to follow these instructions without the need to resort to personal training by the manufacturer or by its designate. The rest of the manual provides operating instructions and other features and reference information on the unit. The officer need not be an expert on the internal workings of the speed measuring unit; nonetheless the manufacturer has made its testing procedures relatively straight-forward and designed the unit so that it is very simple to operate. I am satisfied that, in this age of technology, users should not have to be trained directly by manufacturers of these technological devices in order to gain proficiency on their testing and use.
I am persuaded by R. v. Williams, supra. Officer Firth “received training deemed appropriate by [her] superiors”. She had been using the device whenever she was assigned to speed enforcement over the year prior to the matter before this Court. Other than responding to the question about the ‘delta test’ for which she provided a sensible explanation, she had no difficulty responding to questioning regarding the testing and operation of the LTI 20/20 TruSpeed Lidar speed measuring device.
On her testimony as a whole, I am satisfied that there was no evidence that cast doubt on the qualifications of Officer Firth as a qualified operator of the LTI 20/20 TruSpeed Lidar speed measuring device. I find that there is an adequate factual foundation upon which I can conclude that Officer Firth was properly qualified to operate the specific speed measuring device in question.
(b) Usual Practice in Testing the Speed Measuring Device:
It is the position of the defendant’s agent that the evidence provided by Officer Firth that it was her usual practice to test the speed measuring device is not sufficient evidence to determine that the necessary tests were actually performed. This should raise a reasonable doubt as to whether the speed measuring device was working properly. The Ontario Court of Appeal set the standard in R. v. Vancrey,  O.J. No. 3033, at paragraph 22, requiring that the officer “tested the device both before and after its use in accordance with the manufacturer’s instructions to ensure it was operating properly on the date in question”. The officer made no notation in her notes of any testing times and in her testimony simply stated that it was her usual practice, from which she did not vary, to test the LTI 20/20 TruSpeed Lidar at the back parking lot as she left the police station with the unit at the beginning of her shift and upon her return at the end of her shift. The defendant’s agent submits that the case law supports the need to take careful, accurate and contemporaneous notes. In the absence in the officer’s notes of this important information, the reliability of the officer’s evidence that she tested the unit before and after her shift should be discounted and raise a reasonable doubt. The standard of proof is beyond a reasonable doubt and not that she always does it and, therefore, she must have done it that day. [See e.g., R. v. Niewiadomski,  O. J. No. 478 (O.C.J.), at para. 9; R. v. Herzig,  O.J. No. 1980 (O.C.J.), at para. 126-127; R. v. Hayes,  O.J. No. 5057 (O.C.J.), at para. 9-10; R. v. Zhu,  O.J. No. 1797 (O.C.J.), at paras. 81 & 119-120; R. v. Zack,  O.J. No. 5747 (O.C.J.), at para. 6; R. v. Delmorone,  O.J. No. 3988 (O.C.J.), at para. 96.]
The prosecutor submits that ‘usual practice’ in testing a laser device is sufficient proof that testing was performed. In, R. v. Thompson, 2001 CanLII 24186 (ON CA),  O.J. No. 449, a case involving a breathalyzer device, the Ontario Court of Appeal held that evidence of the officer’s usual practice in conducting tests was sufficient to sustain a conviction. It goes to the weight given to the evidence. The British Columbia Court of Appeal has affirmed Thompson, supra, in R. v. Ashmore,  B.C.J. No. 75, and at paragraph 61 explains that if someone provides evidence that he regularly does something in a certain way in his professional life, then that is surely evidence and possibly convincing evidence that he did it in that way on the day in question.
I have carefully reviewed the submissions of both the defendant’s agent and the prosecutor. The Ontario case law provided by the prosecutor is from the Court of Appeal, but deals with breathalyzer devices. The case law from the defendant’s agent is from the Ontario Court of Justice. I am not bound by the Justice of the Peace decisions and since I am aware of conflicting Ontario Court of Justice appeal decisions on this topic, I must look to a higher court for guidance. Hence, I have relied on an Ontario Court of Justice appeal decision, R. v. Roshani-Kalkhoran,  O.J. No. 2387 (O.C.J.), in which Justice Stone relied upon the Ontario Court of Appeal decision in Thompson, supra, when he determined that the standard practice of an officer testing a speed measuring device at the beginning and end of his or her shift affords a trial court some evidence upon which a verdict can be founded that the usual practice was carried out on the occasion in question. I am persuaded by this decision and its reliance of the Court of Appeal and applying the principle of stare decisis, I feel bound to follow this decision.
Applying the law upon which I rely, to the facts before me, I am satisfied that the evidence provided by Officer Firth that she does not vary from her usual practice of testing the laser unit in accordance with the manufacturer’s specifications each time she leaves the police station with the unit at the beginning of her shift and again upon her return at the end of her shift, is sufficient evidence to sustain a finding that she tested the LTI 20/20 TruSpeed Lidar at 8:00 am on November 16, 2009 and again upon her return to the police station at the end of her shift that day. Each time, she found the unit to be in good working order. I am satisfied that the absence of notation of testing time at the end of her shift may go to the weight I give to her evidence as a whole, but is insufficient to bring all of that evidence into the realm of reasonable doubt on a balance of probabilities.
(c) Properly Testing the Speed Measuring Device:
The defendant’s agent submits that Officer Firth did not test the speed measuring device in compliance with the manufacturer’s tests. Hence, it cannot be said that the unit was functioning properly on the day in question. When cross-examined, Officer Firth testified that for the ‘scope alignment test’ and the ‘fixed distance test’ she did not personally measure the distances. Instead, the distances appeared appropriate and she relied upon the markings and landmarks measured and provided to her by her Instructors. As such, it is the position of the defendant’s agent that these measurements used by Officer Firth to test the device at the beginning and end of her shift are hearsay and not admissible and we cannot rely upon them to be accurate at 50 metres or a fraction of a metre more or less for the ‘fixed distance zero velocity test’ or the recommended 200 metres for the ‘scope alignment test’. Furthermore, the officer admitted that she was not familiar with, nor did she perform the ‘delta test’, and when the testing procedures were provided to her, she advised that the manufacturer’s manual advised that a test she routinely did perform in accordance with her training could be used in place of the ‘delta test’.
The prosecutor argues that hearsay evidence is not automatically excluded unless someone objects to its admissibility. In fact, the evidence to which the agent objects as hearsay in his submissions is evidence the agent, himself, elicited in his cross-examination of the officer. Hence, he cannot now object to it being entered as evidence.
In order to safeguard fairness and to help ensure that this trial is conducted fairly and that justice is done, I have undertaken a review of the law on hearsay evidence. Adopting the principled approach which first emerged from the Supreme Court of Canada decision, R. v. Khan, 1990 CanLII 77 (SCC),  S.C.J. No. 81,  2 S.C.R. 531, at paragraph 540, Justice McLaughlin, as she then was, noted:
The first question should be whether reception of the hearsay statement is necessary. Necessity for these purposes must be interpreted as “reasonably necessary”. The next question should be whether the evidence is reliable.
Hence, I must decide whether the evidence provided by Officer Firth is necessary and reliable. To begin with ‘necessary’, I have reviewed Exhibit 1, the manufacturer’s testing procedures. The ‘fixed distance zero velocity test’ states, “However, the distance between the target and the shooting mark must be a multiple of a meter, not a fraction of a metre.” [Emphasis added.] Hence, I am satisfied that it is necessary that the distance measured between the target and the line drawn on the police station parking lot pavement must be exactly 50 metres and not a fraction more or less in order for a proper ‘fixed distance zero velocity test’ to be performed. Only then would I be satisfied that the unit was tested in accordance with the manufacturer’s specifications and found to be functioning properly. Moreover, I am acutely aware of the nature of the Provincial Offences Courts and the volume of matters that pass through our courts each day and each year, in which matters are to be dealt with in a relatively expeditious fashion. Ideally, each police officer might measure the 50 metre distance for himself or herself. However, I am not convinced that this same distance need be measured over and over again by each police officer. Also, I am aware of the limitations on police resources within the DRPS. Under these circumstances, it is not reasonable to call into court as potential witnesses in speeding trials, the Instructors who trained and qualified the officers and measured the testing distances. I accept as “reasonably necessary” that the police officer, who was trained by the qualified Instructors that the distance was 50 metres, and who effected the traffic stop and must be present as a witness, can then bring such evidence into court.
Next, I must decide “reliability” of the evidence provided to Officer Firth by the Instructors. I am satisfied that these Instructors are trained and qualified as Instructors deemed appropriate by and for the DRPS. As such, common sense prevails to find that they would be acutely aware of the importance of accurate measurements and the scrutiny these measurements would have to withstand in a court of law. Consequently, the Instructors would want the distances they measure to comply with manufacturer’s specifications. In assessing ‘reliability’, there is an element of trustworthiness and I find Officer Firth’s trust and reliance on her Instructors’ measurements not misplaced.
Having assessed necessity and reliability, I accept the evidence of Officer Firth that the distances used to test the LTI 20/20 TruSpeed Lidar were in accordance with the manufacturer’s specifications. Furthermore, the officer was unwavering in her explanation of the testing procedures and, in the absence of any acceptable contradictory evidence, I have weighed all of the relevant evidence before me, including the officer’s observation that the defendant’s vehicle was travelling at a higher rate of speed than the posted speed limit and that the speed registered on the speed measuring device matched her visual observations. There is no evidentiary foundation that would put at issue any circumstances that might lead me to find issues with the reliability or functionality of the speed measuring unit. For these reasons, I find that Officer Firth properly tested the LTI 20/20 TruSpeed Lidar device at 8:00 am on November 16, 2009 and again at the end of her shift, in accordance with the manufacturer’s recommendations, to find the unit was functioning properly in registering the rates of speed of moving motor vehicles.
(d) Proving All of the Elements Of Speeding:
In Williams, supra, Justice Pockele notes at paragraph 3:
I wish to address the issue of “essential element of the offence”. There is a vast body of law that relates to the operation of mechanical speed detection devices, cases that have been decided at the trial level and the appellate level which relate to the testing, operation, and set up such devices. While these decisions have value as precedents, it must be noted that the decisions are highly specific to the individual devices used in specific cases. The only “essential elements of the offence” in a speeding charge are the date, place, posted speed, identification of the vehicle operator, and the speed of the motor vehicle. The Highway Traffic Act leaves it open to the prosecution as to how the rate of speed is established in court. There are many different ways to establish excessive speed such as – and this is not meant to be an exhaustive list – pacing a vehicle, mechanical road cables, aerial observation, radar, laser, etc. Whatever method is employed by the prosecution, the burden is upon the prosecution is to establish the rate of speed beyond a reasonable doubt after the evidence has been fully challenged. In R. v. Bland,  O.J. No. 2139, 19 C.C.C. (2d) 121, speed based on speedometer readings, R. v. Chow, radar-photography device where the Court held:
The evidence must meet the test of demonstrating a circumstantial guarantee of trustworthiness and accuracy and that without any evidence to the contrary, the evidence was admissible and was entitled to weight.
The date was November 16, 2009, at about 10:35 in the morning. The place was southbound on Garden Street approaching Collette Drive, in the Town of Whitby in the Regional Municipality of Durham. The posted speed limit was unchallenged at 50 kilometres per hour. Through an Ontario driver’s licence in which the photograph was compared to the driver, the defendant, Stefano Galluzo, was satisfactorily identified as the driver of the motor vehicle Officer Firth observed to be speeding on that date and at that location. The laser speed measuring device provided a reading of 71 kilometres per hour at a distance of 246 metres from the officer, a speed which was consistent with the officer’s visual observations. These are the essential elements listed in Williams, supra.
In determining how the rate of speed was established, Officer Firth used an LTI 20/20 TruSpeed Lidar speed measuring device. I have provided reasons to find Officer Firth was adequately trained to operate this particular speed measuring device. Further, she properly tested the unit in accordance with the manufacturer’s specifications at 8:00am and again at the end of her shift on November 16, 2009 and she was satisfied that the device was functioning properly and accurately registering speeds – and, for the reasons I have provided, the Court does not have any concern about the reliability or functionality of the laser unit. I accept the Officer’s unchallenged evidence that she targeted the front plate of the defendant’s vehicle with the beam of the laser device, there were no obstacles between the device and the vehicle and hence she ensured the device operated properly in reference to the defendant’s motor vehicle.
On all of the evidence which I do accept, I find that all of the elements of speeding have been made out beyond a reasonable doubt. As well, the rate of speed has been established beyond a reasonable doubt by the qualified officer’s appropriate testing and employment of the properly functioning LTI 20/20 TruSpeed Lidar speed measuring device, which was used appropriately in reference to the defendant’s motor vehicle.
Following the traffic stop, Officer Firth exercised roadside discretion and served the defendant with an Offence Notice for the charge of speeding 60 kilometres per hour in a posted 50 kilometre per hour zone, contrary to section 128 of the HTA.
2. Should the Rate of Speed be “Amended Up” from 60 km/hr to 71 km/hr in a Posted 50 km/hr Zone?
In support of his request to ‘amend up’ the Certificate of Offence from “60 km/h in a posted 50 km/h zone” to “71 km/h in a posted 50 km/h zone”, the prosecutor relies upon the following excerpts from the Ontario Court of Appeal decision, York (Regional Municipality) v. Winlow,  O.J. No. 3691, 2009 ONCA 643 (CanLII). Justice J.I. Laskin, writing for the Court, starting at paragraph 58, notes:
As a general conclusion, I see nothing inherently unfair about the practice itself. It seems to me that it seeks to achieve, or at least balance, two laudable objectives, both of which are in the public interest: to provide offending drivers with an incentive to settle out of court, thus disposing of many speeding charges quickly and efficiently; and to ensure that drivers who commit speeding offences are convicted at the actual rate of speed over the speed limit that they drive, thus promoting both specific and general deterrence.
I do not consider it inappropriate when a police officer uses discretion to charge a driver with speeding at a rate less than the actual rate over the speed limit. …
The prosecutor’s carriage of the charge includes the discretion to manage the prosecution in accordance with the statute.
And, under s. 34(2) of the POA, the legislature has expressly authorized the court to amend a charge to conform to the evidence disclosed at trial. Defendants have no vested right to insist on a trial only on the charge named on the certificate of offence. The prosecutor may thus exercise discretion by asking the court to “amend up” the certificate. The legislation gives the prosecutor the right to do so: see R. v. Irwin. It is not for the courts to interfere with the exercise of prosecutorial discretion except in cases of flagrant impropriety: see Krieger v. The Law Society of Alberta, 2002 SCC 65 (CanLII),  3 S.C.R. 372.
However, before the amendment is granted, the court must consider the four requirements of s. 34(4) – the word “shall” makes the court’s consideration mandatory. These requirements are intended to ensure that the court’s amendment power, although broad, is not exercised in a way that is unfair to defendants.
34(4) The court shall, in considering whether or not an amendment should be made, consider,
(a) the evidence taken on the trial, if any;
(b) the circumstances of the case;
(c) whether the defendant has been misled or prejudiced in the defendant’s defence by a variance, error or omission; and
(d) whether, having regard to the merits of the case, the proposed amendment can be made without injustice being done.
In determining whether the defendant has been mislead or prejudiced in the defendant’s defence by a variance, Justice Laskin continues at paragraph 70:
The court must consider whether the defendant is misled or prejudiced by the proposed amendment. This is a key consideration in deciding whether to grant an amendment. Being misled or prejudiced under s. 34(4)(c), however, does not mean the prospect of facing more severe consequences because of the amendment. That a defendant may face a stiffer fine, more demerit points or increased insurance premiums is not a reason to refuse to amend the certificate to allege a higher rate of speed over the limit. To decide whether a defendant is misled or prejudiced under s. 34(4)(c), the court must consider whether the defendant’s opportunity and ability to meet the charge would be adversely affected by the amendment. The court must ask: will “amending up” mislead or prejudice the defendant; and if so, can the misleading or prejudice be cured by, for example, an adjournment.
Special care must be taken to ensure that POA proceedings are fair to defendants. Where the prosecutor seeks to “amend up”, the prosecutor and the court should ensure, at a minimum, that the defendant understands the amendment, understands the consequences of the amendment and is given a reasonable opportunity to make submissions on why the amendment should not be granted.
Under s. 34(2) of the POA, the amendment is to be made during the trial as disclosed by the evidence. An important question bearing on the fairness of the amendment is when the defendant receives notice of it. No special form of notice is required. Indeed, the notice need not even be in writing. But the timing matters.
Ideally, the defendant should receive notice of a proposed amendment before the day of trial. However, in POA proceedings this ideal will not always be practical. If, for practical reasons, notice of the amendment can only be given on the day of trial, then it would be far preferable that the notice be given before the trial begins and that the defendant then be given a reasonable opportunity to consider how to respond.
After notice is given, in most cases, the prosecutor and the court would be wise to do what was done in this case – offer the defendant an adjournment to consult counsel or an agent or just to have more time to consider whether to conduct the defence differently. Of course, if the defendant is represented by an agent, and notice of the motion to amend is not given until the day of trial, the case may necessarily have to be adjourned so that the agent can obtain instructions.
Although I have suggested that defendants be given notice of their potentially increased jeopardy before the trial begins, the broad amendment power in s. 34(2) of the POA does contemplate that notice of the amendment can be made during or even at the conclusion of the evidence. Still, the later during the proceedings that the defendant is given notice of the proposed amendment, the greater the risk of prejudice if the amendment is granted: see R. v. Wanamaker,  O.J. No. 1581 (Ct. J.). Where notice to amend up is first given during the trial, defendants may well argue that they would have conducted their defence differently or even retained an agent had they known that they faced more serious consequences. In the face of these or other arguments, before granting an amendment, the court must consider whether prejudice will result and whether any resulting prejudice can realistically be cured.
The agent for the defendant accepted Winlow, supra, as good law and wished to make no further submissions on the motion.
In assessing the four factors in section 34 of the POA, I begin with the evidence at trial. Officer Firth clearly stated that the LTI 20/20 TruSpeed Lidar registered the speed of the defendant’s vehicle at 71 kilometres per hour. This speed was consistent with her visual observations. With demerit points and the amount of the monetary penalty in mind, she exercised discretion at the roadside to issue the Provincial Offence Notice at a lower rate of speed of 60 kilometres per hour in a posted 50 kilometre per hour zone.
The second factor looks to the circumstances of the case. Here, no unusual circumstances have been brought to my attention which would distinguish this matter in my determination to either allow or not allow the amendment.
In considering whether the defendant has been prejudiced or misled in the defendant’s defence by a variance, the Court of Appeal spent considerable effort explaining the importance of advanced notice of the prosecution’s intention to ask for such an amendment, in the absence of which, an adjournment may cure the late or lack of notification. In the matter before this Court, the prosecution provided notice at least by November 2010; hence, I am satisfied that there should not be any misleading or prejudice brought on by lack of or late notification.
I must also “ensure, at a minimum, that the defendant understands the amendment, understands the consequences of the amendment and is given a reasonable opportunity to make submissions on why the amendment should not be granted”. [See Winlow, supra, at para. 72.] To this end, I am satisfied that the defendant is represented by two seasoned and licenced paralegals who are quite capable of explaining the amendment and its consequences to him. During submissions, Mr. Tatangelo was provided with a clear opportunity to provide submissions in response to the prosecution’s request to ‘amend up’. He had no submissions other than to say that Winlow was good law.
Finally, I must put my mind to whether, having regard to the merits of the case, the proposed amendment can be made without any injustice being done. On the facts before me, I am satisfied that the defendant was speeding – the offence has not changed. The ‘amending up’ speaks only to the quantum or rate of the speeding. Justice Laskin, in Winlow, supra, at paragraph 80, describes this fourth factor under subsection 34 of the POA as, “I take injustice to capture the general notion of unfairness.” I turn also to his words at paragraph 58 in which he concludes that, “I see nothing inherently unfair about the practice itself. It seems to me that [amending up] seeks to achieve, or at least balance, two laudable objectives, both of which are in the public interest: to provide offending drivers with an incentive to settle out of court, thus disposing of many speeding charges quickly and efficiently; and to ensure that drivers who commit speeding offences are convicted at the actual rate of speed over the speed limit that they drive, thus promoting both specific and general deterrence.”
Having considered the words of Justice Laskin and the facts in the matter before this Court, I find nothing inherently unfair which would expose the defendant to an injustice if the requested “amending up” is granted.
In conclusion, having considered the four factors of section 34 of the POA, I am granting the amendment. The Certificate of Offence is amended to delete “60 km/h” and in its stead is “71 km/h”.
In the matter before this Court, I am satisfied that all of the elements of speeding and how the rate of speed was determined have been proven beyond a reasonable doubt. There has been no evidence which I accept, which would provide me with reasonable doubt on a balance of probabilities or which would lead me to find otherwise.
Also in the matter before this Court, after considering the factors provided in section 34 of the Ontario Provincial Offences Act, I am granting the amendment to ‘amend up’ the rate of speed on the Certificate of Offence from 60 kilometres per hour to 71 kilometres per hour in a posted 50 kilometre per hour zone.
On the evidence before this Court, I am satisfied beyond a reasonable doubt that Stefano Galluzo is guilty of the charge of speeding 71 kilometres per hour in a posted 50 kilometre per hour zone. There will be a conviction registered.
Source Canli Lexum