ONTARIO COURT OF JUSTICE. Provincial Offences Court HER MAJESTY THE QUEEN JASON HOVINGA * * * * * * R E A S O N S F O R J U D G M E N T

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1 File No Citation: R. v. Hovinga, ONCJ ONTARIO COURT OF JUSTICE Provincial Offences Court HER MAJESTY THE QUEEN v. ONCJ 781 (CanLII) JASON HOVINGA * * * * * * R E A S O N S F O R J U D G M E N T HEARD BEFORE HIS WORSHIP JUSTICE OF THE PEACE J. ZIEGLER on the 13th day of August, at Cambridge, Ontario * * * * * * CHARGE: Stunt Driving, S. 172 (1), Highway Traffic Act * * * * * * * *

2 (i) Table of Contents ONTARIO COURT OF JUSTICE 5 Provincial Offences Court T A B L E O F C O N T E N T S ONCJ 781 (CanLII) Reasons for Judgment... Page 1 * * * * * * * * * Transcript Ordered August 21, 13 Transcript Completed August 21, 13 Ordering Party Notified August 21, 13

3 FRIDAY, AUGUST 13, R E A S O N S F O R J U D G M E N T 5 JUSTICE OF THE PEACE J. ZIEGLER (Orally): This is a charge against Jason Hovinga that on the th of April, 09, at the city of Kitchener, did drive a motor vehicle on Highway 401 while performing a stunt, to wit speeding, kilometres per hour in a posted 0 kilometre per hour zone, contrary to section 172 (1) of the Highway Traffic Act. ONCJ 781 (CanLII) We have the evidence of one person and that is the officer who was operating the Genesis Directional radar device on Highway 401 on the date in question. Officer Andrew Munro who is an Ontario Provincial Police office since 1987 and is a qualified operator of the Decatur Genesis VP Directional radar device indicated that at the day in question he set up on the westbound north shoulders for speed enforcement on Highway 401. He said he had used this type of unit many times. He was trained in theory how it works and when - how to set it up. He had tested it at 8:36 p.m. that night, :33 p.m. and then at 3:04 a.m. Now the evidence that I had from the officer is that he clocked the speed at 1:39 a.m. So presumably his shift started the day before and it was on the early morning of April th at 1:39 a.m. when he heard this motorcycle approaching. He said I

4 could hear it coming before I observed it. I am facing east looking at westbound traffic coming. It's a stationary device. You can set it forward, coming towards or away vehicles leaving you or both. I had it in forward. And in response to - in-chief to the question when the vehicle approaches how does the machine alert you? We have an audio. I have it on five, the loudest, so when you press the trigger you hear the sound. I - from low tone to higher pitch for faster vehicle, plus you have the readout. He said I could tell a motorcycle was coming. I had the radar ready. As soon as the vehicle crested the hill I pointed it and got 184, it slowed, got it locked in at 183. Any time to make an estimate of the speed? All I knew is he was going very fast. He started to slow down. I was on the radio telling - I didn't get who, but it was somebody I guess at the station. It was at a very high rate. Testified later he didn't expect that vehicle - this vehicle to stop but it did. He said the bike was creating the pitch and speed and was consistent with my observations. In response to the question, distance travelled? Maybe a hundred yards. It was like a blur as it went by. When I turned on the lights it just slowed down. Stopped on flat area by bridge. The noise was coming from the motorcycle. There was only one occupant. He did not note the make or model of the motorcycle. There was no question raised by the ONCJ 781 (CanLII)

5 defence as to the identity of the driver who produced a valid Ontario driver's photo I.D. card. He suspended - gave him a notice of suspension. The vehicle was towed and I gave him a ride home. The speed - the maximum speed on the 401 is 0 kilometres per hour. There was no dispute as to that. In cross-examination the defence was given what's now marked as Exhibit Number 1, copies of the testing of the radar device, which includes tracking history. Is this the manual you observed and were trained on? Yes. More than just this portion was given in disclosure? Yes. You're not a technician? You're an operator? Correct. We can't pick and choose the testing. No I'm given instructions. You have to follow the manufacturer's instructions? Correct. Can't deviate in any manner? No. You never first observe the vehicle, you heard it? Correct. When you saw it you activated the radar? Yes. Is this device capable of making spurious or false readings? Answer: All readings are valid but it can make readings of unknown source. ONCJ 781 (CanLII)

6 Then he was walked through questions on the tracking history. Asked if he checked the muffler of the motorcycle when he stopped it? No he did not. Said, he's not qualified. I was at a loss for not putting down what kind of motorcycle it was. Does acknowledge that different motorcycles make different sounds. When asked, is it your duty to put down everything of evidentiary value? That is right. He did say that other people may say what is important and should have - and that should have put various things down but he put down what he thought was important. ONCJ 781 (CanLII) In reply to a question asked by the prosecutor he said, I waited 'til he crested the hill. I knew he was really in excess of the speed limit. It is not like I could pinpoint the number. Now the prosecution suggests in submissions that he only had a hundred yards to do a visual observation, perform the proper tests and that through his testimony the tracking history and testing, the officer's complied and articulated the observation, the audio tone was consistent with the speed. The prosecutor suggested that the five kilometres part on - number one under 6.4 tracking history, the second part of it says - it actually starts out this way. "6.4 Tracking History - For each enforcement action taken by the police

7 with respect to a speeding offence arising out of the use of this radar unit a tracking history must occur. The tracking history shall consist of: (1) A visual observation of an approaching or receding motor vehicle that appears to be in excess of the posted speed limit in the area and an estimation by the officer of the speed of that motor vehicle is travelling. Generally skilled officers are able to estimate the speeds of moving motor vehicles within plus or minus five kilometres per hour of the actual speed. This is an acquired skill that is taught on the basic operators course. (2) Having made the visual observation and estimate of the rate of speed, the radar unit will be placed in the operational mode. (3) Note that the target speed displayed on the radar unit is consistent and confirms the officers initial observations and estimate and that the audio tracking tone emitted by the radar unit is consistent with the visual observations and the target speed displayed. (4) Absence of any one of the above tracking history components and no ONCJ 781 (CanLII)

8 enforcement action shall be undertaken." 5 Then the prosecutor said the officer gives estimates that the speed was extremely fast and that's the only evidence of speed is the evidence of the officer. Now the defence submits the case of R. v. Kololgi, which I've reviewed, suggests that the crown has not proven its case beyond a reasonable doubt because the tracking history was not adhered to by the officer; that there is an instruction by the manufacturer that an officer is required to estimate the speed before you activate the radar unit. ONCJ 781 (CanLII) I am making a finding of fact based on the officer's testimony that the officer did not estimate the speed of the motor vehicle prior to activating the radar unit. He heard the motor cycle approaching the crest of the hill prior to seeing it and by the sound said that he thought this vehicle was travelling at a high rate of speed. He pointed the directional radar unit towards the crest of the hill outside the window of the car and when it crested the hill activated the unit before he estimated its speed. He says that the audio pitch of the radar unit indicates that it was a high rate of speed and that that pitch would be consistent with the reading that was on the radar unit.

9 Mr. Cotter, after Mr. Parker made submissions, said the tracking history is a test to ensure that the reading the officer receives is accurate but the case law suggests that it is more than that. Now Mr. Cotter suggests that we can distinguish the Kololgi case because the defendant did not testify as was - as the defendant did testify in that case but I will note that a defendant is not required to testify and the crown must prove the case beyond a reasonable doubt and the only evidence of speed is the evidence of the radar unit and in order to accept that as accurate speed the manufacturer's instructions have to be followed. ONCJ 781 (CanLII) The Kololgi case, which is an Ontario Court of Justice case, and is binding on me, has an officer who is using a radar device while he's following a vehicle. But it is also a Genesis radar device and on page two of the case [09] O.J. No in the oral decision of Justice Hourigan, the constable in that case testified that he... "...read the manual for..." the "...device and agreed on crossexamination that the manufacturer's directions for radar usage should be followed. Section 9.1 of the manual for..." that device

10 "...Genesis II radar device was read into the record by Constable Santos. That section provides in part that for each enforcement action taken by a police officer, a tracking history must be..." complied...which includes among other things, a visual observation of the vehicle in question and an estimation by the officer of the speed of the motor vehicle. The officer should also, this section indicates, correlate the patrol speed of his vehicle and the patrol speed displayed on the radar unit." ONCJ 781 (CanLII) And that of course does not apply to our case but in my view does not mean that through its decision I'm not bound by it. It does not mean that I'm not bound by it because it goes further than just the specific facts of that case. It quotes other cases that have dealt with a similar question in which was raised. Paragraph 7 of that case says: "The appellant submits..." And incidentally the Kololgi case was a case where the Justice of the Peace found that the defendant had been speeding 6 kilometres per hour in a posted 60 kilometre per hour zone and thereby performing a stunt contrary to section

11 172 (1) of the Highway Traffic Act. And in the Kololgi case the appellant submitted... 5 "...that because we are dealing with one of the most serious charges under the Highway Traffic Act with severe consequences upon conviction, police need to ensure that there has been full and strict compliance with the manufacturer's instructions before there can be enforcement. This is so because the definition of this offence turns on a numerical reading of speed, the offence of stunt driving being made out if the vehicle is travelling at a speed of over 49 kilometres per hour over the limit." ONCJ 781 (CanLII) And Justice Hourigan says at paragraph 8, that he was referred to a number of authorities. Well I'm assuming it's a he, but it may be not because I don't know him. He or she was referred to a number of authorities. He referred to the case in paragraph 8 of R. v. Cormier, [08] O.J. No. 4964,...my brother Justice Griffin...set aside...conviction for speeding and dismissed the charge where there had not been full compliance with the testing and the operation procedures of the radar device used by the...officer.

12 In that case, as in the case at bar, the Kololgi case the officer had failed to correlate the patrol speed of his vehicle to the speed displayed on the radar device at the relevant time. In the Kololgi case the officer did not comply with two requirements of the manufacturer's instructions, and one was estimating the speed observed. In this case the only issue is the estimation of speed observed that has not been made by our officer. ONCJ 781 (CanLII) In paragraph Justice Hourigan says that Justice Griffin relied on Justice Schnall's comments in R. v. Niewiadomski [04] O.J. No. 478 where she commented as follows at paragraph 29 of the judgment: "It can be assumed that the absence of full compliance with the testing and operational proceed should make the reading suspect." It should probably say "operational procedure". "There could be no reason for the device manufacturer to set out specifications and directions if it mattered not whether they were complied with." Then going further on paragraph 16. He outlines the respondent's position.

13 "It is the respondent's position that the manufacturer's directions regarding testing the accuracy of the device were complied with..." As is the case here. "...and that the officer ensured that the device was in proper working order." As is the case here. "The respondent submits, however, that usage of the device is another matter and is not subject to the same requirements. In short, the respondent submits that the police are not legally required to follow all of these instructions. The respondent relies on the decisions of R. v. Volfson [09] O.J. No were Justice Klein of this court dealt with the issue of how closely police should follow manufacturer's instructions. The court in that case held that slavish adherence to the manufacturer's directions is not required and that these directions must be examined in a purposeful and practical fashion. Justice Klein then went on to disagree with Justice Schnall's comments that there would be no reason for the manufacturer to set out directions if it mattered not that they were followed. I respectfully disagree with ONCJ 781 (CanLII)

14 Justice Klein's decision in this matter. I agree that the direction must be read in a purposeful and practical fashion. However, I think if this is done the only logical result would be to conclude that the requirements must be complied with in order to establish the reliability and accuracy of radar device reading beyond a reasonable doubt." It goes on to say: "I am in agreement with Justice Schnall's comments and with the decisions rendered by Justice Wright and Justice Griffin in the case of Martin and Cormier respectively. The provision in the manual I find must be complied with by an officer if there is to be enforcement. The officer cannot pick and choose which requirements he will adhere to and which requirements he will ignore. If this were so, there would be an uneven application of the law on this issue, subject to the individual discretion of an officer. There is a reason for the inclusion of all of these components in the manual. A conclusion as to the accuracy and reliability of the device is founded on compliance with these requirements. This is particularly essential in a case such as this where the entire ONCJ 781 (CanLII)

15 prosecution is founded on the numerical reading obtained by the officer through the operation of the device. Compliance with the manufacturer's requirements for enforcement is an essential element because only with strict compliance to the manufacturer's mandatory specification can the court be assured of the reliability and the accuracy of reading obtained through operation of the device beyond a reasonable doubt." And that applies to the case at bar. The officer did not comply with the tracking history which says the tracking history shall consist of the... "...visual observation of an approaching or receding motor vehicle that appears to be in excess of the posted speed limit in the area and an estimation by the officer of the speed of that motor vehicle is travelling." Skipping down to (2). "Having made the visual observation and estimate of the rate of speed, the radar unit will be placed in the operational mode." ONCJ 781 (CanLII) In our case we had no estimate of the speed of the approaching motor vehicle. We had no estimate of the rate of speed. Instead we had the radar unit operating - operated as soon as

16 the motorcycle came over the crest of the hill and the officer saying that the sound of the radar unit confirmed the reading of the radar unit but what is missing is the observation of - and estimate of speed by the officer before using the radar unit. That means that the manufacturer's procedures were not complied with. That means that I cannot accept that reading as proof beyond a reasonable doubt of the speed of that moving motor vehicle and the evidence of Officer Munro is not in compliance with one of the required components of the user manual. So reasonable doubt has been raised and I am dismissing the charge. MR. PARKER: Thank you very much Your Worship. THE COURT: Thank you. ONCJ 781 (CanLII) * * * * * * * *

17 FORM 2 5 CERTIFICATE OF TRANSCRIPT Evidence Act, S. 5 (2) ONCJ 781 (CanLII) I, DEBORAH M. NIHLS, CCR, certify that this document is a true and accurate extract of proceedings to the best of my skill and ability of the electronic digital recordings of R. v. J. Hovinga, in the Ontario Court of Justice, Provincial Offences Court, held at 0 Main Street, Cambridge on August 13,, which recordings have been certified in Form Deborah M. Nihls Certified Court Reporter August 21, 13...