R v Budisantoso

R. v. Budisantoso

2005 ONCJ 458
Ontario Court of Justice — Justice Bruce G. Thomas | November 10, 2005

Background

On January 12, 2005, at 3:44 PM, OPP Constable J. Remillard was driving eastbound on Highway 401 in dense fog when two vehicles passed him at high speed. He pursued them, recorded a speed of 140 km/hour, then watched the lead vehicle pull ahead and disappear from view for up to 25 seconds. When he caught up and pulled over what he believed was the same vehicle, he charged Sadikin Budisantoso with careless driving under section 130 of the Highway Traffic Act.

Budisantoso testified that he was driving home to Brampton from Ohio, had his cruise control set at 115 km/hour, and said the fog was only light with 300-400 metres visibility. The Justice of the Peace convicted him anyway, so Budisantoso appealed to Superior Court, raising four different grounds including certificate defects and unreliable evidence.

Issues

1. Whether the certificate of offence was invalid because it incorrectly included $5.00 in costs as part of the set fine
2. Whether the officer's evidence was reliable enough to support a conviction when he had no notes and lost sight of the vehicle
3. Whether the Justice of the Peace applied the wrong test for the non-suit motion
4. Whether the trial reasons were adequate under R. v. Sheppard

The Fatal Identification Problem

Justice Thomas found the officer's evidence "honestly delivered" but "nonetheless unreliable." Constable Remillard admitted he had no notes from the incident and was relying entirely on memory. Crucially, he acknowledged that he couldn't remember the make of the vehicle — whether it was a mini-van or car — and only knew the details from reviewing his own certificate of offence before trial. When pressed about how he knew the vehicle he stopped was the same one that passed him initially, he admitted he "was totally unable to articulate what those reasons were at trial."

The court emphasized that the Crown must prove two essential elements: that Budisantoso was driving the vehicle that initially passed the officer at high speed, and that the vehicle subsequently paced was the same vehicle. With the officer losing sight of the target for 25 seconds in dense fog and having no reliable way to identify it, the court found this burden was not met. The judge also noted that the officer paced the vehicle for less than 10 seconds instead of the usual two kilometres, further undermining the speed evidence.

Key Takeaway

Police officers must be able to prove continuous observation or reliable identification — memory alone, without notes, won't cut it when there are gaps in surveillance.

This case shows that even honest police testimony can be legally insufficient if the officer can't explain the basis for crucial conclusions like vehicle identification, especially when combined with poor weather conditions and lost visual contact.