R v Stevens

R. v. Stevens

2010 ONCJ 348
Ontario Court of Justice — Justice of the Peace M. Coopersmith | August 19, 2010

Background

Andrew Stevens was riding his blue Yamaha motorcycle westbound on Dundas Street in Whitby on June 21, 2009, when Durham Regional Police Officer Chmelowsky clocked him at 121 km/h in a 50 km/h zone using laser radar. The officer was conducting speed enforcement from the sidewalk at Kathleen Street and Dundas. Stevens was charged with stunt driving under section 172(1) of the Highway Traffic Act (driving 50+ km/h over the limit) and failing to stop for police under section 216(2).

The officer testified that Stevens accelerated rapidly between two vehicles, "took off like a rocket," and when flagged to stop, initially slowed down but then fled into a nearby parking lot. The officer found Stevens at the LCBO eleven minutes later, sweaty and panicked. Stevens told a completely different story — he admitted speeding to 78 km/h to pass a slow Pontiac, but denied the 121 km/h reading and claimed he stopped in the parking lot for three minutes waiting for the officer to approach him.

Issues

1. Did Stevens drive at 121 km/h, constituting stunt driving under section 172(1) of the HTA?
2. Did Stevens fail to immediately stop when signalled by the officer under section 216(1)?

The Credibility Battle

Justice Coopersmith applied the Faryna v. Chorney test, which requires examining whether testimony is "in harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable." The officer's story had problems: he changed his description of traffic from "moderate to heavy" to "light to moderate," and claimed he could chase Stevens through a parking lot, find him at the LCBO, and catch him paying for purchases all within 30 seconds to one minute — physically impossible.

The judge found Stevens' timeline of eleven minutes more credible. More importantly, the officer testified Stevens was doing the speed limit when 80-100 metres away, then somehow accelerated to 121 km/h in just 25-45 metres while in moderate traffic. The judge noted this would require extreme acceleration that should have caused observable effects like the front wheel lifting, which wasn't reported.

The Included Offence Doctrine

Even though the stunt driving charge failed, section 55 of the Provincial Offences Act allows conviction on "included offences" — lesser charges that are necessarily committed when doing the main offence. Since stunt driving under section 3, paragraph 7 of Ontario Regulation 455/07 is defined as driving 50+ km/h over the limit, regular speeding under section 128 is an included offence. Stevens admitted to 78 km/h in a 50 zone, so the judge convicted him of speeding instead.

Key Takeaway

Inconsistent police testimony and impossible timelines can destroy even radar evidence in court.

This case shows that admitting to a lesser speed while challenging the officer's higher reading can be a viable strategy — you might avoid the devastating consequences of stunt driving while accepting a simple speeding conviction.