



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Kee, 2015 ONCA 730

DATE: 20151029

DOCKET: C57462

Strathy C.J.O, Lauwers J.A. and Speyer J. (
ad
    hoc
)

BETWEEN

Her Majesty the Queen

Respondent

and

Hyon Woo Kee

Appellant

Scott Bergman and Benjamin Elzingacheng, for the
    appellant

Amy B. Rose, for the respondent

Heard:  October 1, 2015

On appeal from the judgement of Justice Bruno Cavion of
    the Ontario Court of Justice, dated April 2, 2013 affirming the conviction
    entered on June 22, 2012 by Justice of the Peace J. Jackson.

Lauwers J.A.:

[1]

At the conclusion of oral argument, the appeal was dismissed with
    reasons to follow. These are those reasons.


A.

Context of
    the Appeal

[2]

The facts are not in dispute.  From his patrol vehicle stationed on the
    left shoulder of the three-lane highway, the charging officer observed the
    appellant, Hyon Woo Kee, driving at a high rate of speed moving eastbound on
    the Fred Gardiner Expressway in Toronto, Ontario. The posted speed limit was
    100 km/h. The charging officer clocked the appellants motor vehicle moving
    154 km/h while the vehicle was in the middle lane, using a radar device known
    as the BEE III Automatic Same Direction Traffic Radar (the BEE III),

[3]

The officer pulled the appellant over and charged him with speeding and
    stunt driving, contrary to ss. 128 and 172(1) of the
Highway Traffic Act
,
    R.S.O. 1990, c. H.8 (
HTA
),

respectively.

[4]

The trial justice was satisfied with the charging officers evidence and
    found the appellant guilty on both counts.  At the request of the prosecutor,
    the speeding charge was stayed. The trial justice did not have the
    Manufacturers Operation and Service Manual for the BEE III
Automatic
    Same Direction Traffic Radar (Canadian Version)

(the
    Manual) before him.  On appeal, Cavion J. admitted the entire Manual as fresh
    evidence on consent.

[5]

This appeal turns on the proper interpretation of a single phrase in the
    Manual:

ASD (Automatic Same Direction) technology allows the operator
    to select lane of traffic to monitor in stationary mode: in the same lane as
    the patrol vehicle or the opposite lane, or in both lanes. (
p.
    15)

[6]

The appeal judge interpreted the disputed provision, having regard to
    the Manual as a whole, in favour of the Crown. In the absence of evidence to
    the contrary, he determined that the radar devices reading was accurate and
    reliable, and dismissed the appeal:
R. v. Kee
, [2013] O.J. No. 6455
    (C.J.).  His interpretation was diametrically opposite to the one reached in
R.
    v. Chaudhry
, [2012] O.J. No. 3919 (C.J.).

[7]

MacFarland J.A. granted leave to appeal to this court under s. 139 of
    the
Provincial Offences Act
, R.S.O. 1990, c. P.33 (
POA
) on
    the following grounds:

There are two appellate decisions of the Ontario
    Court of Justice which have considered the language used in the Operation and
    Service Manual for the BEE III Automatic Same Direction Traffic Radar (Canadian
    Version) and come to opposite conclusions.

In my view, it is in the interests of the
    administration of justice that this conflict be resolved.

[8]

For the reasons set out below, I would dismiss
    the appeal.

[9]

I begin with reviews of the decisions of the
    trial justice and the appeal judge. I then turn to the Crowns fresh evidence
    application, and the analysis of the issues.

B.

THE DECISION OF THE JUSTICE OF THE PEACE

[10]

At trial, the appellant was self-represented and
    did not lead any evidence or testify.  He cross-examined the charging officer
    on his qualifications, training, familiarity with the BEE III, and standard
    operating procedures.

[11]

The charging officer testified that: he was
    trained and qualified to use the BEE III device; he tested the device before
    his shift and found it to be in proper working order; the device self-tests
    every 20 minutes; and, he tested the device at the end of his shift and again
    found it to be in proper working order.

[12]

The officer testified to the facts set out above. 
    His evidence at trial was that the appellant drove his grey Honda Civic aggressively,
    moving in and out of traffic, switching between the far right and the middle
    lanes. When the appellants vehicle was about 30 yards back from the patrol
    vehicle, the officers BEE III radar device locked in on the appellants motor
    vehicle and recorded that it was moving at 154 km/h in a 100 km/h zone in the
    middle of three lanes. The officer testified that when the appellants vehicle
    passed the patrol vehicle, he saw the front of the appellants vehicle dip
    sharply and rear brake lights come on, signifying that the appellant applied
    the brakes with force.

[13]

The trial justice accepted the
    evidence of the charging officer as credible and admitted the evidence
    regarding the BEE III reading as reliable and accurate. He found that both
    charges were proven beyond a reasonable doubt.  At the request of the Crown,
    the speeding charge was stayed. The trial justice sentenced the appellant to
    pay a $3,000 fine, as requested by the Crown keeping in mind the principles of
    denunciation and deterrence

C.

THE DECISION OF THE APPEAL JUDGE

[14]

As noted, the appeal judge admitted the entire Manual
    on consent, and the appeal turned on the interpretation of the disputed phrase,
    reproduced here for convenience:

ASD (Automatic Same Direction) technology allows the operator
    to select lane of traffic to monitor in stationary mode: in the same lane as
    the patrol vehicle or the opposite lane, or in both lanes.


[15]

The appellant, assisted by an agent, argued that the disputed phrase
    meant that, when the patrol vehicle is stationary, the BEE III can only be used
    to detect the speed of motorists if it is located in the same lane of traffic
    as the patrol vehicle, or in the adjacent lane. Since the patrol vehicle was on
    the shoulder of the road, and the appellants vehicle was at least two lanes
    away, the appellant submitted that the charging officer could not have been operating
    the BEE III in accordance with the manufacturers specifications. The appellant
was not in the same lane as the patrol vehicle or the opposite lane
which he had to be, since the officer was

in
    stationary mode, according to a strict reading of the disputed provision. The
    appellant relied on
Boivin J.s decision in
Chaudhry
as authority for his proposed interpretation.

[16]

In
Chaudhry
Boivin J. stated, at para. 6:

The fact that the officer acknowledged the
    manufacturer guidelines, and disagreed with them, and his suggestion that they
    are absurd cannot constitute evidence that the machine was operated in
    accordance with the guidelines such that I can rely on this reading, when done,
    in contravention with those guidelines. The radar device is a precision
    instrument and reliance on such can only be done if it is operated in
    accordance with manufacturer guidelines.

[17]

Boivin J. concluded at para. 7 that the speed
    reading was not reliable because the BEE III device was not, operated in a
    lane, which the manufacturer says the operation should be conducted in.
Boivin J. allowed the appeal and entered
    an acquittal.

[18]

Relying on
Chaudhry
and the evidence, the appellant argued that the BEE IIIs speed
    reading obtained by the officer did not satisfy the exception to the hearsay
    rule and could not lead to a conviction.

[19]

The appeal judge declined to follow the decision
    in
Chaudhry
, stating at para. 13, that if
    Boivin J.
had had the opportunity to
    review the entire Manual, and had he been advised of these sections, I am
    confident he would have decided differently.

[20]

The appeal judge found, at para.10, that the
    appellants rigid interpretation is not accurate and that such an
    interpretation makes the instrument impractical to use on stationary mode on
    any busy highway. Reading the Manual as a whole, the appeal judge interpreted
    the disputed phrase to mean that the operator can select whether to monitor
    traffic coming towards or moving away from the stationary patrol vehicle:
    para.12.

D.

FRESH EVIDENCE ON APPEAL

[21]

The Crown seeks the admission of fresh evidence
    on this appeal to assist this courts resolution of this ambiguity in the
    meaning of the disputed provision, and in reconciling the conflicting
    conclusions reached in the decision below and in
Chaudhry
.  The proffered evidence is a
short affidavit from John H. Broxon II, the current
    president of MPH Industries (the manufacturer of the BEE III).  Mr. Broxon
    is an electrical engineer who was a member of the team who drafted the Manual. His
    affidavit sets out the intended meaning of the disputed phrase, and affirms the
    BEE IIIs technical capacity to monitor the middle lane of a multi-lane highway
    from a stationary position on the side of the road.

[22]

Where it is in the
    interests of justice to do so, this court is entitled to receive and admit
    fresh evidence pursuant to ss. 117(1)(d) and 134 of the
POA
. The well-established principles
    enunciated by the Supreme Court of Canada in
Palmer v. The Queen
, [1980] 1 S.C.R. 759,

govern the
    courts decision under s. 117(1)(d) of the
POA
:
R. v. 1275729 Ontario Inc.
, [2005] O.J. No. 5515 (C.A.) at paras.
    19-21.

[23]

The proffered evidence is relevant and credible,
    but I would not admit it, on the ground that the admission of the evidence
    would not have affected the result.

[24]

The Crown admits
the proffered evidence would not have affected the
    result at trial (where the question addressed by the fresh evidence was not
    before the trial justice) or the appeal decision. However, the Crown suggests
    that the proffered evidence affirms the appeal judges interpretation,
    undermines the appellants claim that the officer failed to comply with the
    manufacturers guidelines in this case, underscores the reasonableness of the
    verdict at trial, and resolves the conflict in the jurisprudence. The Crown
    argues that its probative value in the context of this appeal is overwhelming.

[25]

The Supreme Court of
    Canada has specifically cautioned courts against an expansion of
the
Palmer
criteria
:
R. v. Levesque
, 2000 SCC 47, [2000] 2 S.C.R. 487, at
    para. 18.
I do not agree with the appellant that failure
    to satisfy the fourth branch of the
Palmer
test
    literally, by demonstrating that the proffered evidence would
reverse

the outcome at trial, is always fatal to a fresh evidence
    application. However, this is not a case in which I would admit it by exception.
    The proposed fresh evidence is simply unnecessary.

E.

Analysis

[26]

The appellants argument proceeds in two steps.
    First, the appellant submits that the appeal judges interpretation of the
    disputed provision in the Manual is wrong; second, that being so, he submits
    that the speed data produced by BEE III on which the charging officer relied is
    not reliable and cannot sustain a conviction, because there has not been strict
    compliance with the Manual. In view of my decision on the first issue,
    concerning the interpretation of the Manual, I would not address the second.

THE INTERPRETATION
    OF THE DISPUTED PROVISION

[27]

The appellant argued,
    as he did in the first appeal, that a reasonable interpretation of the provision
    is that the BEE III can only be used to monitor traffic travelling in the same
    lane as the stationary patrol vehicle or in the directly adjacent lane. This
    flows from the language of the Manual, which I repeat here for convenience:

ASD (Automatic Same Direction) technology allows the operator
    to select a lane of traffic to monitor in stationary mode: in the same lane as
    the patrol vehicle or the opposite lane, or in both lanes. (
p.
    15)

[28]

The appeal judge
    interpreted the disputed provision in light of the entire Manual. He found, at
    para. 12 of his decision: The BEE III can monitor traffic both coming and
    going towards a stationary patrol car parked on the shoulder of the highway.
In support of this conclusion, the appeal judge quoted two passages
    from the Manual that indicate the BEE IIIs capacity to monitor traffic moving
    in the same
direction
or the opposite
direction
, at paras. 10-11:

On page 2 of the Manual, it says:

ASD (Automatic Same
    Direction technology) allows the BEE III to automatically measure the speeds of
    targets moving in the same direction as the patrol vehicle ASD allows the
    radar to measure the speed of targets moving in one direction while completely
    ignoring targets moving in the opposite direction.

Also, on page [6], the Manual states:

In stationary mode,
    you can select the direction of target you want to monitorthe radar will
    measure the speed of targets moving in both directions, just like a manual
    radar will. As soon as a target is measured, the radar will tell you the
    direction that the vehicle is travelling in addition to the speed that it is
    travelling.

[29]

While the appellant
    concedes that the appeal judges interpretation might be reasonable, he argues
    that the appeal judge did not have sufficient evidence before him to make such
    an interpretation.

[30]

I disagree. Reading the
    Manual as a whole, the appeal judge had sufficient evidence to support his
    interpretation.  In addition to the provisions the appeal judge relied on
    specifically, the Manual also states at p. 17:

In stationary mode, the Mode window works
    similarly. Indicators appear in front of or behind the patrol vehicle icon to
    indicate the selected antenna. If the opposite lane of traffic is selected,
    only the arrow in the left lane lights. If the same lane of traffic is
    selected, the arrow in the right lane lights.
If both

directions

are selected
,
arrows in both

lanes

light
.  [Emphasis added.]

And, at p. 6:

Now, press the Same button on the remote. You
    will notice that the
arrow corresponding to the patrol cars

lane

is illuminated
.
This indicates that the radar will only measure the
    speed of vehicles

moving in that
    direction
(moving away from the patrol vehicle on
    the front antenna and approaching the patrol vehicle on the rear antenna).  The
    radar will only measure the speeds of vehicles
moving in the
same
    direction
as the patrol car, regardless of whether there
    is a stronger vehicle
moving in the opposite direction
.



Now press the Opposite (Opp) button on the
    remote. You will notice that the
arrow moves over to the

other lane of traffic
in
    the Mode window. In this mode, the
radar will only display the speed
    of vehicles

moving in that direction
(moving toward the patrol vehicle on the front antenna and away
    from the patrol vehicle on the rear antenna). Like in the previous case, the
    radar will only measure the speeds of vehicles
moving in

that lane of traffic
regardless of whether there is a stronger vehicle
moving in the

other lane of traffic
.

You
can toggle between the

lane
you want to measure
by pressing the Same and Opp keys.  If you want t
o go back to
monitoring

both directions of traffic
, you must press the Mov/Sta key twice. [Emphasis in original
    removed. Emphasis added.]

[31]

In these excerpts, the word lane or phrase
    lane of traffic are used interchangeably with the word direction, all of
    which refer to the direction in which the monitored traffic is moving, which
    supports the appeal judges interpretation. There are various other, similar
    references to lane and direction throughout the Manual that I do not
    reproduce in full here. Taken together, these provisions establish, as the
    appeal judge found, that the BEE III can be used to monitor traffic moving in
    either direction, or both from a stationary roadside position. There is no
    requirement that the patrol vehicle be stationary in the same, live lane of
    traffic that it is monitoring in order to comply with the Manual.

[32]

The appellant further submits that the BEE III
    can only be used to monitor traffic in the immediately adjacent lane to the
    stationary patrol vehicle. Again, I disagree.  The appellant has not identified
    anything in the Manual that supports this interpretation.  In fact, the Manual
    does not explicitly caution that the BEE III can only be used to monitor
    specific lanes (not directions) of traffic in proximity to the patrol vehicle. The
    Manual repeatedly refers to the BEE IIIs capacity to distinguish between the
    strongest and fastest targets moving in the same direction while in
    stationary mode, which indicates that the device has the capacity to monitor
    multiple traffic lanes and focus on the fastest moving vehicle across those
    lanes.

[33]

The appellant has not demonstrated any error in
    the appeal judges interpretation of the Manual.  The contrary interpretation
    of the disputed phrase in
Chaudhry

is
    erroneous.

F.

DISPOSITION

[34]

I
    would dismiss the appeal.

Released: October 29, 2015 GS

P.
    Lauwers J.A.

I
    agree G. R. Strathy C.J.O.

I
    agree C.M. Speyer J. (
ad hoc
)



