R. v. Vershinin, 2022 BCPC 128 (CanLII)
|
|
2022 BCPC 128 |
|
|
Date: |
||
|
File No: |
SG-00493560-1 |
|
|
Registry: |
North Vancouver |
|
IN THE PROVINCIAL COURT OF BRITISH COLUMBIA
REGINA
v.
ADRIAN VERSHININ
CORRIGENDUM
REASONS FOR JUDGMENT
OF THE
ADMINISTRATIVE JUDICIAL JUSTICE G. HAYES
|
Appearing for the Crown: |
Officer Mehta |
|
Appearing on his own behalf: |
A. Vershinin |
|
Place of Hearing: |
Place of Hearing: |
|
Date of Hearing: |
April 28, 2022 |
|
Date of Judgment: |
June 16, 2022 |
A Corrigendum was released by the Court on June 16, 2022. The corrections have been made to the text and the Corrigendum is appended to this document.
Issue
[1] Where, in this form of prosecution for speeding, the jurisdiction of a license plate is based solely on the interpretation of photographic evidence, is the trier of fact permitted to take a view of said evidence to assess the disputant’s contention that British Columbia jurisdiction associated to the image of the license plate is not proven beyond reasonable doubt? Yes – see R. v. Nikolovski, 1996 CanLII 158 (SCC)
Background
[2] The Crown enjoys a relaxed evidentiary burden in these traffic camera cases, and is permitted to present their case by way of certificate evidence with incorporated photographs. Once these documents and images are entered in evidence, a prime facie case is established requiring the disputant to provide “evidence to the contrary”.
[3] In the present case, a vehicle was detected speeding which triggered the intersection camera to photograph the event. An enforcement officer reviewed the digital evidence gathered by the camera to determine if the jurisdiction and syntax (numbers and letters) of the license plate establish that the plate is issued in British Columbia. There is no automated license plate software applied, but a Certificate of Vehicle Ownership from ICBC will confirm whether or not a license plate with matching syntax is registered in the jurisdiction of British Columbia.
[4] Once these certificates were admitted, the disputant proceed with cross-examination of the enforcement officer who prepared the documents, focussing on the officer’s ability to determine that the licence plate in the certificate image is one issued in the Province of British Columbia. The officer has viewed tens of thousands of images in the course of his duties and despite the fact that the words “Province of British Columbia” are not evident; it is his view that there is a BC flag decal which divides the numbers and letters on the plate. A subsequent check with ICBC confirms that there is a matching British Columbia plate issued to the disputant, as set out in the certificate evidence. The enforcement officer admits that there may be other jurisdictions with similar syntax on their licence plates.
Submissions
[5] The disputants asks that I take an independent view of certificate Image 4, which is a cropped, zoomed image of the original, and make a finding that the “decal” is too indistinct to be relied upon to establish that the image is that of a licence plate issued in the Province of British Columbia. The registered owner certificate only establishes that a similar plate has been issued in this province. The disputant cites two cases in support of their position that a trier of fact is permitted to take a view of the photographic evidence in order to assess the disputant’s assertion.
• R. v. Benias, 2000 BCPC 198
• R. v. Tsang, [1998] BCJ No 1216
[6] The Crown submits that the ambiguity relating to the “decal” is insufficient “evidence to the contrary” to offset the certificate evidence. Furthermore, it is the Crown’s position that a there is no statutory requirement for the trier of fact to be able to read the licence plate in the photo, citing R. v. Guinn, [1997] BCJ No. 3046.
Analysis
[7] I agree with the Crown’s statement, but only to the extent that the findings in that case are applicable to the admissibility of the certificate evidence, not to the ultimate finding of fact. In the matter of Guinn, I had erred by refusing to admit a certificate into evidence to the abysmal quality of the images. Following the decision in Guinn, the Crown asserted this position in subsequent photo radar cases.
[8] In 2000, I addressed the Crown position in R. v. Benias (supra), after having had an opportunity to review the 1996 decision of the Supreme Court of Canada which established general principles that apply to the admissibility and weighing of photographic evidence. (R. v. Nikolovski (supra)). This decision was handed down October 3, 1996, after the photo radar legislation came into effect on August 1, 1996.
[9] The court confirmed:
… right of a trial judge to take an independent judicial view of photographic evidence, and arrive at a finding based solely thereon, was upheld. At issue was the identity of an armed robbery suspect where the eyewitness was unable to identify the accused in court. Identity was ultimately established by the trial judge taking a view of videotape of the robbery; and forming the opinion that the accused was the same person depicted in the video. …
[10] The Crown's sole reliance on technical / scientific means to gather evidence and prosecute speeding offences has been upheld in R. v. Tri-M Systems Inc., 1998 CanLII 1495 (BC SC), [1998] BCJ No. 2702 (QL). Justice Brenner (as he was then) applied Nikolovski on this point:
37. It is not uncommon nor is it unconstitutional to use evidence gathered by scientific means to prove elements of the criminal charge against an accused. This may be done by various means including photographic evidence, audio and video evidence, DNA evidence or radar gun evidence. The Supreme Court of Canada has held that such scientific evidence may constitute cogent and convincing evidence not subject to the frailties of eye witness testimony and that such evidence alone can be a sufficient basis to establish guilt. (R. v. Nikolovski (1996), 1996 CanLII 158 (SCC), 111 C.C.C. (3d) 403).
[11] Brenner, J. did not comment further on the application of Nikolovski in relation to the issue of the interpretation of the visual evidentiary component of the evidence (the photographs) by the trier. He did comment on the "evidence to the contrary", the evidentiary burden, and the application of s. 24 of the Interpretation Act at paragraphs 41 to 48:
41. In my view the real issue is whether the legislative scheme taken as a whole does in fact require the court to convict on the basis of the Certificate evidence or whether the scheme merely allows the Crown to establish a prima facie case.
42. The answer is to be found in the wording of s. 24 of the Interpretation Act. That provision stipulates that the evidence of the facts stated in a certificate are "deemed to be established in the absence of evidence to the contrary." This does not create a requirement to convict where a reasonable doubt exists.
43. It is open to the accused to raise a reasonable doubt based on the contents of or omissions from the certificate itself and/or to apply for an order that the author of the certificate attend for cross-examination. Either or both of these steps are available to an accused and allow him to attempt to raise a reasonable doubt without having to testify.
44. In my view all that the certificate evidence does is serve to establish at most a prima facie case which then shifts the evidentiary burden to the accused to raise a reasonable doubt. This does not constitute a violation of s. 11(d) of the Charter since it is a shift of only the evidentiary burden. The legal burden of proving all ingredients of the offence beyond a reasonable doubt always remains with the Crown.
45. In R. v. Proudlock (1978), 1978 CanLII 15 (SCC), 43 C.C.C. (2d) 321 the Supreme Court of Canada interpreted s. 24(1) of the Interpretation Act, R.S.C. 1970, c.I-23. In language virtually identical to s. 24 of the B.C. statute, this federal statute provides:
24(1) Where an enactment provides that a document is evidence of a fact without anything in the context to indicate that the document is conclusive evidence, then, in any judicial proceedings, the document is admissible in evidence and the fact shall be deemed to be established in the absence of any evidence to the contrary.
46. The court held that this provision did not shift the legal burden but created only a prima facie burden. In speaking of the effect of a presumption that establishes a prima facie case the court held at p. 325:
The burden of proof does not shift. The accused does not have to "establish" a defense or an excuse, all he has to do is raise a reasonable doubt. If there is nothing in the evidence adduced by the Crown from which a reasonable doubt can arise, then the accused will necessarily have the burden of adducing evidence if he is to escape conviction. However, he will not have the burden of proving his innocence, it will be sufficient if, at the conclusion of the case on both sides, the trier of fact has a reasonable doubt.
47. Tri-M argues that the offensive aspect of the photo radar scheme is that it allows the Crown to prove not just one or even several of the ingredients of the offence through certificate evidence, but rather all of the elements of the offence. In my view this does not undermine the validity of the scheme.
48. The essential question is whether a court is required to convict when it has a reasonable doubt. What Proudlock says is that the language of the Interpretation Act does not oblige the court to convict if a reasonable doubt as to the guilt of the accused is raised by reason of the contents of the certificate or the cross-examination of the author of the certificate. Accordingly I conclude that the photo radar legislation does not offend s. 11(d) of the Charter and I would allow the Crown's appeal on that point as well.
[12] In other photo radar cases, the Supreme Court of British Columbia has also applied R. v. Noble, 1977 CanLII 169 (SCC), 37 CCC (2d) 193, R. v. Pearce, [2000] BCJ No. 451 and R. v. Smith, [1998] BCJ No. 302. The Court stated that ambiguities in the certificate evidence upon which the Crown is relying to obtain a conviction where the Crown enjoys a relaxed evidentiary burden are to be strictly interpreted in favour of the accused.
Findings
[13] The Certificate of Vehicle Ownership proves that the disputant has a license plate registered in their name which matches the licence plate found in Vehicle Image 4. The Crown relies on the enforcement officer’s interpretation that the “decal” in the image is that of the flag of the Province of British Columbia, thus proving the Crown’s case.
[14] The disputant argues that the image of the “decal’ is too indistinct to establish the jurisdiction and, having taken a view of the image, I must agree with the disputant in this regard and will enter an acquittal.
_____________________________
Administrative Judicial Justice G. Hayes
Provincial Court of British Columbia
CORRIGENDUM - Released June 16, 2022
In the Reasons for Judgment dated June 16, 2022, the following changes have been made:
[15] Paragraph [5] case law citations should read:
• R. v. Benias, 2000 BCPC 198
• R. v. Tsang, [1998] BCJ No 1216
[16] Paragraph [6] citation for R. v. Guinn should read: R. v. Guinn, [1997] BCJ No. 3046.
[17] In paragraph [8], the quote starting with “The court confirmed…” should instead become paragraph [9], renumbering all subsequent paragraphs, and read:
[9] The court confirmed:
… right of a trial judge to take an independent judicial view of photographic evidence, and arrive at a finding based solely thereon, was upheld. At issue was the identity of an armed robbery suspect where the eyewitness was unable to identify the accused in court. Identity was ultimately established by the trial judge taking a view of videotape of the robbery; and forming the opinion that the accused was the same person depicted in the video. …
[18] The first sentence in former paragraph [11], which after being renumbered becomes paragraph [12], should read: In other photo radar cases, the Supreme Court of British Columbia has also applied R. v. Noble, 1977 CanLII 169 (SCC), 37 CCC (2d) 193, R. v. Pearce, [2000] BCJ No. 451 and R. v. Smith, [1998] BCJ No. 302.
_____________________________
Administrative Judicial Justice G. Hayes
Provincial Court of British Columbia