This case is an appeal of a traffic court conviction where the officer who issued the ticket used a visual observation of vehicle speed to base the ticket on. The estimation was 90 km/h in the posted 60 km/h zone on the Lougheed Highway near the North Road intersection.
Visual Estimate of Speed is Sufficient
Brendan McMullen was convicted of speeding against a municipal sign in Burnaby traffic court. The Judicial Justice of the Peace found that Cst. Bayer's evidence of the visual speed estimate was sufficient to prove the Crown's case beyond a reasonable doubt.
Grounds for Appeal
Mr. McMullen appealed the conviction to the Supreme Court on three issues:
- by not undertaking a proper credibility analysis;
- by not providing sufficient reasons for judgment in failing to explain why and how a significant evidentiary conflict was resolved; and
- in failing to give proper effect to the evidence.
Credibility Analysis
The JJP preferred Cst. Bayer's evidence because it was reliable and credible. In contrast, Mr. McMullen's evidence was inconsistent and contradictory.
Sufficiency of Reasons
Cst. Bayer and Mr. McMullen gave different estimates of the distance traveled before he was pulled over. This would affect the corroboration that it would offer of Mr. McMullen's speed. The JJP accepted Cst. Bayer's evidence and was not criticized by the Justice for doing so.
Giving Effect to the Evidence
Mr. McMullen argued that the speed Cst. Bayer had to travel in order to catch up to him did not support that he was speeding. Both courts disagreed.
The Verdict
[69] The substance of the issue before the Judicial Justice was the speed at which Mr. McMullen’s vehicle was travelling. Mr. McMullen’s evidence was clearly rejected as unreliable and not credible. The evidence that Mr. McMullen was speeding was supported by the evidence of Cst. Bayer as to Mr. McMullen’s speed not only as he passed through the Intersection but also as corroborated by the later speeds that Cst. Bayer was required to travel to catch up with him, some distance away, all of which was accepted by the Judicial Justice. This evidence amply supported the verdict.
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It's probably hard to argue the municipal sign catch-all since that's a hard 50, anything over is guilty, and everyone goes beyond 50 at-times.
Cst. Bayer pulled me over once at Kingsway and Griffiths Ave, around 2am on a Sunday, a several years back, arguing that I was street racing. I was in a black convertible Camaro V6 going home at a regular clip, and a white Mustang GT V8 just showed up and was making stunts. Cst. pulled both of us over with just 1 car - he was going after me, and the white Mustang just pulled in behind him. So Cst. towed both our cars and sent the passenger of the white Mustang to jail for warrant/breaking parole, not sure. To this day I still think that the driver of the white Mustang should have just buggered off, instead of following the cop several blocks to where he pulled me over, and parked behind.
This was so stupid, it made Cst. Bayer sure that we knew each other and that we were street racing.
As I've never been caught excessive speeding, and never had my car towed before, and did not want that on my record, so I disputed the charge and went to court. Cst. Bayer showed me the dash cam footage from his cruiser, showing the intersection of Kingsway and Griffiths Ave from about 1.5 blocks away (~250 meters south) and the video showed my poor little V6 Camaro getting dusted by the big mean V8. And while a little embarrassing, I thought that the video didn't capture any reliable speed evidence and I told Cst. that. So we went to trial.
At trial Cst. Bayer had promptly changed the allegation against me from excessive speeding to the against municipal sign (MVA - 146(1)) and I pleaded "No contest", as almost nobody goes 50 or below 50 on Kingsway in Burnaby at 2am on a Sunday. I got a stern lecture from the Justice and was on my way with the excessive speeding allegation defeated. The tow bill was not discussed and it cost me several hundred dollars for the wrongful tow and the 7 days of unwelcome "storage".
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Hard to argue the municipal sign catch-all