R. v. WURTZ, 2024 SKCA 16, FEBRUARY 22, 2022.
FACTS: The accused was charged with the offence of speeding (“driving a vehicle at a speed greater than the maximum speed indicated by a properly erected sign”, contrary to section 199(1)(b) of The Traffic Safety Act, SS 2004). At the trial, the officer involved was asked to identify the driver of the vehicle. The following exchange took place between the officer and Crown counsel (see paragraph):
Okay. Now, you said you obtained licence from the driver?
A Correct.
Q And it matched the driver?
A At the time, yes, I —
Q Do you see the person to whom you issued the ticket in the courtroom today?
A Unfortunately, not off memory.
Q Okay.
A But again, just to reiterate, my practice is comparing them at — at the that stop, making sure that the driver and the picture are one and the same.
Q Okay. So at the time you were satisfied?
A I was, yes.
The trial judge entered an acquittal, concluding that the Crown had failed to prove (1) that the accused was the driver of the vehicle because of the lack of “direct evidence” and (2) that the posted speed limit sign was an “official sign”.
The Crown’s appeal to the summary conviction appeal court was allowed and a conviction was entered.
The accused was granted leave to appeal to the Saskatchewan Court of Appeal. The grounds upon which leave were granted was described by the Court of Appeal as being the following (at paragraph 3):
(a) Does the law require in-dock identification of an accused person to establish the accused’s identity at trial?
(b) Can the Crown rely upon the presumption of regularity to establish elements of an offence?
HELD: The accused’s appeal was dismissed.
In-dock identification is not required to prove identity; the circumstantial evidence was sufficient to prove identity:
The Court of Appeal indicated that though “the Crown is required to prove the identity of the person who has committed the crime, this can be achieved through either direct or circumstantial evidence; the law does not require in-dock identification of an accused person to establish the accused’s identity at trial” (at paragraph 23). The Court of Appeal also indicated that though “the appearance by a person in court after being charged is not, on its own, evidence of the fact that they have committed a crime…it is a circumstance from which the inference can be drawn that they were the person to whom the ticket or other charging document that compelled their attendance in court was issued” (at paragraph 27).
The Court of Appeal concluded that “there was circumstantial evidence from which to draw inferences respecting identity. The substance of the officer’s testimony – which was unchallenged – was that he had followed his usual practice and issued the ticket to the person whom he had identified as having committed the offence that he had witnessed. When the officer’s testimony was combined with the inference to be drawn from Mr. Wurtz’s appearance in court on the morning of the trial, the appeal judge was correct to hold that the only conclusion open to the trial justice was that Mr. Wurtz was the person who was ticketed for the offence” (at paragraph 28).
The presumption of regularity:
The Court of Appeal indicated that the “presumption of regularity (omnia presumuntur rite esse acta) is the legal doctrine that creates a presumption that bypasses proof regarding the accuracy and creation of documents and the correctness of actions of public officials” (at paragraph 36).
The Court of Appeal concluded that “the Crown was entitled to rely on the presumption of regularity to prove that the sign that posted the speed limit met the requirements of the TSA. The appeal judge correctly determined that the trial justice had erred by failing to apply the presumption in this case” (at paragraph 38).
